V. THE USE OF FORCE: COMPLAINTS ABOUT THE IDF’s CONDUCT OF OPERATIONS

 
D. Complaints about the IDF’s Conduct of Operations
312 Israel is acutely aware of concerns raised about the IDF’s conduct of operations in Gaza, prompted by the civilian deaths and injuries and the damage to property during the conflict.  Israel recognises that all allegations regarding violations of international law in Gaza by any party, for which there is reliable information, must be thoroughly investigated, and where appropriate, prosecuted.  The IDF therefore initiated a series of field investigations into allegations regarding its conduct, as discussed in Section V.D(1) below.  As referenced in Section V.C(5), investigations of allegations in previous military operations have resulted in criminal proceedings and convictions in appropriate cases.  313 The IDF’s field investigations are only the first stage in the process.  The MAG and the Attorney General will examine the findings (some already rendered, others, still pending) of those inquiries.  Any affected party — Israelis and Palestinians alike, as well as non-governmental organisations — can appeal the decisions of both the MAG and the Attorney General to the Supreme Court sitting as the High Court of Justice, as they frequently do in other cases.  The Supreme Court’s decisions are a matter of public record. 314 Until these investigations are complete, and in order to preserve the integrity and independence of the investigations currently underway in Israel, it would be premature to reach any final conclusions regarding specific complaints, either as to general IDF practice during the recent conflict or as to specific incidents and allegations.(256)  Nonetheless, given extensive public discussion about these issues and the frequency with which conclusions have preceded rather than followed the evidence, this Paper sets forth below (in Sections V.D(2) and V.D(3) some initial information regarding a number of complaints.  This information may be released at this stage based on what is known from the investigations thus far, and without compromising the integrity and independence of the investigations which are in progress.  It is possible that different findings will emerge as the investigations continue.  Even so, even at this early stage these preliminary investigations have identified important facts that have not yet received significant public attention, but that are essential for any rigorous analysis of the Gaza Operation. 315 Any fair analysis of the Gaza Operation must also consider these facts against the broader analytical framework set out above, applicable to the Law of Armed Conflict.  As indicated in Section V.A, international law does not condemn military actions simply because they resulted in unfortunate civilian casualties, as well as damage to civilian property and infrastructure.  Rather, it examines whether commanders and soldiers had legitimate military objectives in their use of force, and whether they made appropriate efforts to minimise civilian casualties, based on a “reasonable commander” test and the information then available.  Only if forces intentionally targeted civilians or fired indiscriminately, or struck military objectives despite knowing that (or without seeking to determine whether) they were likely to cause civilian harm that was excessive in relation to the military advantage anticipated at the time, can their actions be regarded as a violation of the law of war.

 

(1) The Status of Investigations

316 The IDF is in the midst of conducting comprehensive investigations, at various levels of the military justice system, regarding complaints about IDF conduct of operations in Gaza between December 2008 and January 2009.  Thus far, the IDF has been examining about 100 complaints, originating from a variety of sources, including U.N. inquiries and NGO reports.  Every alleged violation brought to the IDF’s attention has been or will be examined. 317 The examinations have commenced with an initial assessment of whether a complaint reveals suspicions of criminal behaviour.  If the complaint appears to be based on prima facie evidence or raises serious concerns of intentional misconduct by IDF soldiers (such as the use of civilians as human shields, pillage, or maltreatment of detainees), it is generally referred directly to the Military Police for investigation.  If the complaint concerned operational activity, it is first referred to a field investigation.  The findings of the field investigations are subject to review by the Military Advocate General, who in turn decides whether to order a Military Police investigation, a stage which also involves the collection of outside testimony.  Further details are provided below. 318

Field Investigations.  Following the Gaza Operation, IDF Chief of General Staff Lt. Gen. Ashkenazi appointed five Colonels who were not directly in the chain of command for the operations in question to investigate thoroughly issues raised by, among others, international and non-governmental organisations and the international and Israeli media.  The decision to initiate these field investigations emanated from the IDF’s professional, moral and legal obligations to examine all claims made in relation to the conduct of the warfare.  The teams were tasked to deal with the following issues:(257)

  • Claims regarding incidents where U.N. and international facilities were fired upon and damaged during the Gaza Operation;
  • Incidents involving shooting at medical facilities, buildings, vehicles and crews;
  • Claims regarding incidents in which civilians not directly participating in the hostilities were harmed;
  • The use of weaponry containing phosphorous; and
  • Destruction of private property and infrastructure by ground forces.
319 In accordance with standard IDF procedure for field investigations, the investigators operated independently and were provided access to all materials and the freedom to question any relevant IDF personnel.  They were given the complaints received by the IDF and other Israeli authorities, interviewed many soldiers and officers, and gathered relevant documents and other materials from external sources.  Each soldier whose testimony was requested was required to cooperate with the investigation, and the investigators received full cooperation. 320 The full findings of each of these five field investigations were presented to the IDF Chief of Staff, and a summary of those findings are reflected below, as representing Israel’s current information about various alleged incidents and complaints.  However, this does not mean the investigations are closed.  Rather, in accordance with usual practice, a summary of each investigation has been presented to the Military Advocate General, who is vested with authority to decide whether additional checks need to be done, or if there is sufficient basis for opening a military police investigation.  His decision is independent, and he is subject only to the law.  Due to the significance of the issues involved, the conclusions of the IDF field investigations and the opinion of the Military Advocate General will also be reviewed by the Attorney General.  Accordingly, the investigations constitute only the first level of examination.  This process is still, therefore, underway. 321

Field Investigations in Progress.  In addition to the five broad field investigations above, the IDF Military Advocate General is awaiting the findings of field investigations into more than sixty other incidents, acting chiefly upon reports received from local and international NGOs.  These include, inter alia, the following cases (in chronological order, and as an illustrative list only):

  • Allegations regarding an air strike on a bus station near an UNRWA college which killed 12 civilians (Gaza, 27 December).
  • Allegations regarding a missile attack against residential premises that killed 3 civilians and wounded 4 civilians, all members of the Al-Abasi family (Rafah refugee camp, 29 December).
  • Allegations regarding an air strike that killed three children, members of the Al-Astal family (Al-Karara village, 2 January).
  • Allegations regarding an air strike that damaged the Al-Raya medical centre (Gaza, 4 January).
  • Allegations regarding the firing of shells and shootings that killed and wounded members of the Samouni family (Zeitun, 4 January).
  • Allegations regarding artillery strike, including shells containing white phosphorous, and additional shootings, that killed and injured members of the Al-Halima family (Safiya area, 4 January).
  • Allegations regarding the firing of tank shells on civilians carrying white flags that killed two civilians (Johar A-Dic, 4 January).
  • Allegations regarding the firing of Flechette rounds on an ambulance that killed one medical personnel and wounded another (Beit Lahia, 4 January).
  • Allegations regarding the shooting of women carrying white flags, killing one of them (4 January).
  • Allegations regarding an air strike that killed five members of the Abu-Ayisha family (A-Nasser neighbourhood, Gaza, 5 January).
  • Allegations regarding the firing of Flechette rounds that killed two civilians (Izbat Beit Hanoun, 5 January).
  • Allegations regarding the shooting of civilians carrying white flags, that killed one civilian (Beit Lahia, 5 January).
  • Allegations regarding the firing of Flechette rounds that killed three civilians (Mugharka/Nezarim, 7 January).
  • Allegations regarding the shooting of civilians carrying white flags that killed two civilians (Jabaliya, Abed Rabu neighbourhood, 7 January).
  • Allegations regarding an artillery strike that damaged the European hospital (Khan Younis, 10 January).
  • Allegations regarding the shooting of civilians carrying white flags that killed four civilians (Khuzaa’, 13 January).
  • Allegations regarding an air strike that killed 2 civilians members of the Al-Kurdi family (Gaza, 14 January).
  • Allegations regarding an artillery strike, including by munitions containing white phosphorous, and tank shelling that damaged al-Quds hospital (Tel al-Hawa, 15 January).
  • Allegations regarding an artillery strike, including by munitions containing white phosphorous, which killed 4 members of the Al-Khadad family.
  • Allegations regarding a missile that struck the residence of the Batran family and killed 6 civilians (Al Bureij, 16 January).
  • Allegations regarding an air strike on the residence of the Banar family that killed 10 civilians (Sajaiya, 16 January)
322 As explained above, after reviewing the field investigation findings, the MAG will decide whether to order Military Police investigations into the above incidents.  The MAG may order criminal investigations without waiting for the results of a field investigation.  Decisions of the MAG in this regard are made publicly available, and are subject to review by the Attorney General and possibly by the Supreme Court. 323

Criminal Investigations in Progress.  In addition to these numerous field investigations, as of 1 July 2009 there were also thirteen IDF Military Police investigations currently in progress into incidents giving rise to suspicions of misconduct by IDF personnel during recent operations in Gaza.(258)  The allegations referred directly to military policy investigations are as follows:

  • Allegations regarding pillage (Zeitun, 3 January).
  • Allegations regarding violence and maltreatment of a Palestinian detainee (Beit Lahia, 3 January).
  • Allegations regarding the use of civilians as human shields (Jabaliya, 4 January).(259)
  • Allegations regarding violence and pillage (Al-Atatra, 5 January).
  • Allegations regarding the use of a civilian as a human shield (Beit Lahia, 5 January).
  • Allegations regarding the use of civilians as human shields (Azbet Abed Rabu, 5 January).
  • Allegations regarding the use of minors as human shields (Al-Atatra, 5 January).
  • Allegations regarding violence and ill-treatment of Palestinian detainees (Al-Atatra, 5 January) (2 separate investigations).
  • Allegations regarding damage to property and pillage (Al-Atatra, 5 January).
  • Allegations regarding violence and maltreatment of a civilian (Zeitun, 8 January).
  • Allegations regarding the use of a child as a human shield (Tel al-Hawa, 15 January).
  • Allegations regarding maltreatment and use as human shields of detainees (Jabaliya, date unknown).
  • Allegations regarding the use of civilians as human shields (Asmouni, date unknown).
324 Criminal Investigation regarding the Rabin Military Preparation Center allegations.  During a conference held at the Rabin Military Preparation Center, several IDF soldiers who participated in the Operation levelled serious accusations of violations of the Law of Armed Conflict by the IDF, including intentional shooting of civilians.  Due to the serious nature of these allegations, the MAG ordered a criminal investigation by the Military Police without awaiting a prior initiation of field investigations.  The Military Police investigation revealed that some of the stories were based on hearsay and were not consistent with verifiable facts.  Two examples, both from the Zeitun neighbourhood during the third week of the Gaza Operation, are discussed below.  325 One of the soldiers at the conference said that an order was given to open fire at an elderly woman, but later clarified to investigators that he had not personally witnessed the incident and was repeating a rumour.  The investigation showed that in this case, IDF soldiers had fired at a suspected female suicide bomber who ignored numerous warnings to stop advancing in their direction. 326 The investigation revealed that IDF soldiers positioned in one of the houses in the neighbourhood were alerted that a female suicide bomber was present in the area.  Soon after, they identified a woman wearing black clothes which seemed to be hiding something beneath them.  She walked directly towards the house where the soldiers were present.  When she reached the distance of 150 metres from the house, a number of shots were fired in the air in order to warn her from getting closer.  Nevertheless, she kept walking towards the house.  When the woman arrived at a distance of 60-100 metres from the house, several additional shots were fired to a nearby point, in a manner that did not risk her, in order to deter her from getting to the house.  She kept walking.  At this stage, when she was close enough to be able to hear the soldiers, they called her to stop, and when that did not help, fired several shots towards her feet.  Despite that, the woman kept approaching the house and only when she arrived at a distance of 20-40 metres from the house, and the soldiers were at substantial risk of being blown up, she was shot. 327 The account by a different soldier of a further incident allegedly involving the shooting of a woman and two children was also revealed to be based on hearsay.  In this case, too, the Military Police probed the circumstances of the actual incident.  The investigation revealed that the story originated with soldiers who mistakenly thought that one of their colleagues had opened fire on the women and children, when in fact he had fired at another target.  The woman and children were unharmed. 328 The investigation revealed that a Palestinian family that was staying in a house occupied by IDF soldiers asked to leave, and was allowed to evacuate to a safe place.  They were given a white flag and instructed – in Arabic – by the commander in charge as to the direction in which they should go.  The commander made sure that they went to the right direction.  At the same time, another soldier present in the same house identified two suspicious men walking towards the house from a different direction.  They were warned to stop and ignored those warnings.  The IDF soldiers therefore fired several shots towards their feet.  The men were hit and evacuated to one of the houses in the neighbourhood.  Based on these findings of the Military Police, the MAG decided to close the case.

 
(2) Complaints about Specific Incidents

329

In this Section, the Paper addresses three broad categories of specific incidents — involving harm to U.N. or other international facilities, medical facilities and vehicles, and other specific incidents involving multiple civilian casualties — based on the findings of three of the five IDF field investigations that have now been completed, and that are under review by the Military Advocate General.  Additional incidents within these categories are still under investigation at the IDF field level.  The findings of the other two IDF field investigations, on more general concerns involving the IDF’s use of certain munitions and destruction of private property and infrastructure, are set forth in Section V.D(3).

 
  (a) Incidents Involving Harm to U.N. and International Facilities

330 During the fighting in Gaza, the IDF faced a major challenge in avoiding damage to U.N. and other international and sensitive facilities.  In the densely populated Gaza Strip there are over 750 United Nations facilities, and almost 1,900 sensitive facilities in total. 331 The challenge was made many times more difficult by Hamas’ strategic placement of terrorist units and missile launching squads in close proximity to these sites, as evident in the following photographs:
 THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS
Mortar shells launched near an UNRWA school in the refugee camp in the central area of Gaza City (Source: IDF Spokesperson)
 THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS

Rockets (red dot with a white star) launched near schools (yellow) in the Sheikh Radwan neighbourhood of Gaza City.  In proximity to the schools there are training camps, terrorist organisation workshops for the manufacture of weapons and arms caches (red) (Source: IDF Spokesperson)

332 Notwithstanding the difficulties involved, in planning its Gaza Operation, the IDF took great care to map out these sensitive facilities, and to try to make sure they did not suffer damage during the Operation.  During the Operation itself, the IDF took numerous precautions to avoid hitting facilities and vehicles affiliated with the U.N., Red Cross, Red Crescent and other international organisations.  The IDF’s rules of engagement included clear orders to avoid harm to these facilities and vehicles.  Throughout the Operation, the IDF coordinated with the U.N. and other international organisations through a special Civil Administration situation room and a centre for humanitarian coordination established in order to help coordinate humanitarian aid day-to-day.  These procedures allowed for movement of some 500 convoys and vehicles throughout the Gaza Strip, and the transfer of a substantial supply of food and humanitarian aid. 333

Despite these precautions, in a number of cases military operations resulted in damage to U.N. facilities and injuries to personnel.  While the vast majority of facilities remained unharmed, Israel views the damage and injury that occurred in these cases as an extremely serious matter and is committed to investigating allegations regarding Israel’s conduct in this regard.  Investigations have already begun.  The first step, under the procedures outlined above, was a thorough IDF field investigation.  The results of this investigation are currently under review by the Military Advocate General.

334 Independent of the IDF’s own investigation, the United Nations Secretary General set up a Board of Inquiry to examine certain incidents involving U.N. facilities.  While Israel viewed this inquiry as premature, pending the conclusion of its internal investigations, it nonetheless cooperated fully with the U.N. Board of Inquiry, providing it with extensive facts and pertinent information.  Indeed, the Secretary General of the United Nations commended Israel for its extensive cooperation.(260)  While Israel has concerns about certain aspects of the Board of Inquiry’s methodology and its resulting report,(261) Israel is currently working together with the United Nations to address issues which were raised in the Inquiry.  Indeed, procedures can always be improved and lessons learned.  Already, in light of the incidents that did occur despite the IDF’s precautions, and in parallel to the investigations undertaken thus far by Israel, IDF Chief of General Staff, Lt. Gen. Gabi Ashkenazi has re-emphasised the importance of better familiarising IDF forces at all levels with the location of sensitive facilities within their assigned combat zones.  He ordered that regulations regarding safety-distances from sensitive facilities be highlighted, specifically with regard to the use of artillery, and also ordered that additional steps will be looked at to improve the coordination between the IDF and U.N. agencies in the field. 335 The following illustrative examples demonstrate both the process of investigation undertaken thus far in Israel with respect to certain incidents involving U.N. facilities, and the application of the proper legal standards to the facts currently available.  As discussed above, the Law of Armed Conflict turns not on the simple fact that certain sites were damaged in the course of battlefield operations, but rather on whether military forces targeted military objectives, and whether in doing so they took into account considerations of proportionality, in weighing the possibility of incidental (but unintended) harm to civilian facilities or persons.(262)

 
    (i) UNRWA School in Jabaliya (Fahoura School): 6 January 2009

336 In this incident, which occurred on 6 January 2009, IDF mortar shells landed outside a school being used as a UNRWA shelter.  No mortar rounds hit the school itself, but landed in the road outside the school and at a nearby compound, resulting in flying shrapnel that reportedly injured several people inside the school, and killed or injured others nearby. 337 The IDF’s ’investigation of the incident found that, on 6 January 2009, an IDF force operating in the El-Attatra-Jabaliya area came under an effective barrage of 120mm mortars launched from a site about 3.5 km. from the force.(263)  The launching site was situated only 80 metres west of the UNRWA school.  The mortar attack lasted for almost an hour, with one mortar being fired every few minutes.  As reported in the media, local residents later confirmed that mortar fire was coming from the vicinity of the school.(264) 338 Soon after the source of fire was detected, a scouting unit was dispatched to confirm the location.  Approximately 50 minutes after the mortar attack had begun, two independent sources cross-verified the location of the mortars.  Only subsequent to this, and after verification of a safety margin of at least 50 metres between the target (i.e., the identified source of mortar fire) and the UNRWA school, did the force respond to the ongoing barrage, by using the most accurate weapon available to it — 120mm mortars.  339 The IDF force that was under attack fired four mortars, about 5-10 minutes after the cross-checked identification of the source of fire, and while Hamas mortars were still being fired towards the forces.  The IDF response succeeded in stopping the Hamas mortar attack.  Indeed, as a result of the response, five Hamas operatives were killed.  The effectiveness of the mission in achieving its military objective is thus indisputable. 340 The IDF acted to defend the lives of soldiers under fire, in order to stop continuing mortar attack.  The defensive action targeted an identified source of mortar fire which represented a concrete and immediate threat to the force.  The IDF executed the responsive fire with as much precision as possible, given the available munitions.  Indeed, the fact that all the Israeli shells landed outside the school grounds demonstrates the care Israel took not to hit the school itself, consistent with its obligations under the Law of Armed Conflict.(265)

 
    (ii) UNRWA Field Office Compound: 15 January 2009

341 In this incident, it has been alleged that IDF artillery firing caused shell casings and burning white phosphorous-soaked wedges to fall within a UNRWA Field Office compound, onto a warehouse area.  The incident reportedly caused injuries to one UNRWA employee and two other unidentified persons who had taken shelter in the compound, as well as damage to buildings, vehicles and supplies  342 The IDF’s investigation found that this incident occurred in the Tel al-Hawa neighbourhood on the twentieth day of the Gaza Operation, during the second week of the ground manoeuvre, in which IDF forces were operating deeper in the urban areas of Gaza in order to reach Hamas’ bases, positions, weaponry warehouses, rocket factories, and launching areas.  On the day of the incident, IDF ground forces, including tanks, were operating in Tel al-Hawa area against Hamas and other terrorist targets.  IDF forces were proceeding towards topographically superior positions overlooking the area, and were exposed to constant fire by Hamas forces.  Hamas units fired at the IDF with various kinds of weaponry, including light weapons, anti-tank missiles, and sniper fire.   343 Hamas’ anti-tank units, equipped with advanced anti-tank missiles, were operating in this area.  These units were located mainly near the northern side of the UNRWA compound, so that the compound was placed between Hamas’ anti-tank units and IDF forces.  The threat to Israeli forces was credible and imminent.  344 The IDF’s primary rationale for deploying smoke screening munitions containing white phosphorous was to produce a smokescreen to protect Israeli forces from the Hamas anti-tank crews operating adjacent to the UNRWA headquarters.  Such a smokescreen has proven an effective response to the anti-tank threat, since it effectively blocks the enemy’s field of view and prevents it from using visual observation tools (including infra-red).  As discussed in Section V.D(3)(a)(i) below, the IDF’s use of the standard smoke projectile — which is commonly found in the arsenal of other armed forces of States worldwide — is lawful for this purpose.  345 The smokescreen created during the fighting in Tel al-Hawa was effective in achieving its military objectives.  It prevented most of Hamas’ attempts to launch anti-tank missiles, although one missile did hit an IDF tank.  Hamas’ anti-tank units, which are mobile, had to change their positions in order to be able to attack IDF forces.  In the absence of the smoke-screen, the fight would have continued in this area, and the IDF would have had to use reactive fire to engage anti-tank units, with the likelihood of greater civilian harm.  346 The target zones of the smoke projectiles were determined in accordance with operational considerations, including the progress of IDF forces and the changing deployment of Hamas anti-tank units.  The IDF sought to maintain a safety distance of several hundred metres from sensitive sites, including the UNRWA compound.  Despite the maintenance of a safety distance, some felt wedges and other components of the projectiles apparently landed in the compound after the release of the felt wedges in the air.  The IDF neither intended nor anticipated this outcome.  Following a U.N. report on a fire in the compound, and in response to a request by the U.N., the IDF ceased the use of smoke projectiles in the area.  In addition, the arrival of fire trucks and evacuation of tankers from the UNRWA compound was coordinated with the IDF.  347 In conclusion, the incident took place during intense fighting, which involved Hamas’ deployment of anti-tank units equipped with advanced anti-tank missiles north of the UNRWA compound.  Hamas thus placed the compound between themselves and the IDF forces.(266)  The IDF implemented an effective smokescreen as a protective measure in response to this threat.  The operational advantage of using the smokescreen was significant.  The IDF anticipated that the risk to civilians and civilian objects was limited in relation to this operational advantage.  Unfortunately, however, three individuals were injured and U.N. facilities were damaged.

 
    (iii) UNRWA Bureij Health Centre
348 In this incident, an aerial bomb hit an apartment building opposite a UNRWA health centre.  There were no injuries to the occupants of the apartment building, who had vacated the building following an earlier warning.  However, debris and shrapnel from the strike apparently hit the UNRWA facility across the street, causing damage to the building and certain injuries inside, as well as injuries to persons who were approaching the centre’s gate.  349 The IDF’s investigation of this incident found that the strike involved the targeting of a legitimate military objective: a Hamas weapons and terrorist equipment storage site that also served as a weapons workshop.  The site was located on the ground floor of a four story civilian residence in a densely populated area.  The residence was connected to several neighbouring buildings and was adjacent to the UNRWA medical centre, as well as to mosques and an educational institution.  350 Given the location, the IDF carefully planned the operation, including an assessment of anticipated collateral damage, in order to minimise the risk to adjacent civilian facilities.  Particular consideration was given to adjacent sensitive sites, such as the UNRWA health centre, which was marked in advance on IDF operational maps and aerial photographs.  The IDF took the following steps in order to minimise possible incidental harm:   
  • The IDF issued warnings in advance, by means of leaflets and telephone calls, advising civilians to keep away from facilities serving Hamas and other terrorist groups, such as the terrorist storage site and weapons workshop in the apartment building.
  • Several minutes before the attack, phone calls were made to the residents of the targeted building, calling them to evacuate the premises.  Subsequently, the IDF issued an additional early warning to the residents of the targeted building and bordering premises, with light weaponry that did not endanger the residents.  This early warning was effective and clearly understood by the neighbouring residents, as confirmed by their evacuation of the building before the attack.
  • The IDF used precision munitions and fired only one munition.  A delay fuse was used to ensure that the detonation of the ammunition would destroy only the terrorist storage site and weapons workshop, and not the buildings connected to it.  This special mechanism limited the damage to neighbouring buildings.
  • The direction and the angle of the strike were calculated to minimise collateral damage. 
351 The strike succeeded in achieving the military objective: it neutralised the terrorist storage site and weapons workshop, while the building itself remained standing, thus avoiding structural damage to connected and adjacent buildings.  The incident thus involved the accurate targeting of a verified military target.  As noted, as a result of IDF warnings there were no injuries to the occupants of the apartment building in which the weapons workshop was housed, or in the adjacent apartment buildings.  352 However no precautions are infallible, and despite the IDF’s precautions in this case, the strike resulted in incidental harm to the neighbouring UNRWA centre.  Israel regrets this harm, but this unfortunate fact it does not render the targeting decision in breach of the Law of Armed Conflict.  Rather, the deliberate decision by Hamas to locate a weapons storage and workshop facility in a civilian building near the UNRWA medical centre, mosques, and an educational institution violated its obligations under the Law of Armed Conflict, including its obligation not to jeopardise the civilian population under its control.(267)

 
    (iv) UNSCO Gaza Compound: 29 December 2008

353 This incident involved the aerial bombing by the IDF of a Hamas command and control centre, approximately 30 metres from a fence bordering a UNSCO compound.  The attack occurred in the middle of the night when the nearby offices presumably would be empty.  There were no direct hits on the UNSCO compound.  However, the strike on the adjacent building reportedly caused shrapnel and concrete debris to fly into the compound, leading to physical damage to the premises, but no deaths or injuries. 354  As indicated, the operational goal of this strike was to eliminate a Hamas command and control centre and to destroy weapons and ammunition considered highly likely to be concealed beneath the building.  The IDF took multiple precautions to minimise any incidental damage from this targeting of a verified military objective, including in particular the UNSCO compound, which was approximately 30 metres from the target and marked in advance as a sensitive site on IDF operational maps and aerial photographs.  In particular, the IDF:  
  • Used precision munitions, and fired only three munitions on what was a very large military target.  Furthermore, the IDF used a delay fuse to ensure detonation of the munitions only deep within the building, in order to limit the possibility of damage to neighbouring buildings.
  • Calculated the direction and the angle of the strike to minimise collateral damage, in particular to the UNSCO compound. 
  • Carefully considered the timing of the strike, executing it at night to minimise civilian presence.
  • Issued advance warnings through leaflets and telephone calls, advising civilians to keep away from facilities being used by Hamas and other terrorist groups, including command and control centres, such as the one at issue here.
355 These precautions were effective in ensuring that there were no deaths or injuries at the UNSCO compound.  The IDF complied with both the rule of distinction (targeting a valid military objective) and the rule of proportionality, using means that eliminated the significant military objective without any injury to civilians.(268)

 
    (v) UNRWA Asma Elementary School: 5 January 2009

356 This incident involved a missile that struck within the compound of a UNRWA school.  The school itself had been closed for some time when the incident occurred, and the missile struck at night.  However, earlier that day, UNRWA apparently had opened the school as an emergency shelter, although it did not so notify the IDF until the day after the strike.  The missile strike killed three men who were outside the school building.  357 IDF’s investigation of the incident revealed the following information: On the night of 5 January 2009, a terrorist unit was present in Asma School preparing to carry out military activity against IDF forces.  The unit was present at night in an elementary school compound, a place where no civilians were known or presumed to be at night, especially since the school had been closed for nine days when the incident occurred.  Earlier that day, the UNRWA apparently had opened the school as an emergency shelter, although it did not so notify the IDF prior to the strike.  The IDF concluded that there was no reasonable explanation for the presence of the unit in the elementary school, other than their preparation for the terrorist activity.  The IDF targeted the terrorist unit only after it cross-checked this information.  In order to minimise incidental damage, the IDF selected and used a guided munition with a reduced warhead.  In addition, visual observation was also used to ensure that no other individuals were present at the site.   358 Information regarding the School functioning as a shelter for civilians was provided by the U.N. to IDF only on 6 January 2009, the day after the incident had occurred.  A list of facilities serving as shelters — provided by the U.N. one day earlier on 4 January 2009 — did not include UNRWA Asma School.(269)

 
    (vi) UNRWA School: Beit Lahia Elementary School: 17 January 2009

359 This incident involved the alleged hitting of a UNRWA school being used as a shelter by white phosphorous-soaked felt wedges and certain debris.  Several deaths and injuries were reported. 360 ’The IDF’s investigation found that the incident occurred during a period in which IDF ground forces, including tanks, were operating in Beit Lahia against rocket-launching units and terrorist infrastructure.  The forces were moving in an inferior terrain, threatened by Hamas positions located in the higher urban zone, including by Hamas’ units armed with advanced anti-tank missiles.  IDF forces were exposed to continuous fire from different sources.  361 In accordance with the combat doctrine for dealing with anti-tank threats, IDF forces fighting in Beit Lahia used standard smoke projectiles in order to create a protective smokescreen between themselves and Hamas’ anti-tank units along the route of their progress.  This smokescreen was effective and prevented Hamas from launching anti-tank missiles at IDF tanks.  In the absence of such a smokescreen, it would have been necessary to use reactive fire at anti-tank units, with the likelihood of more extensive collateral damage. 362 The initial target zone of the smoke projectiles was located at a distance of one kilometre from the UNRWA school.  The target zone was later adjusted in accordance with the progress of IDF forces, the wind direction and the deployment of Hamas anti-tank units.  The nearest target zone to UNRWA school was several hundred metres from the School. 363 Despite the maintenance of an appropriate safety buffer between the nearest target zone of the smoke projectiles and the School, some felt wedges and other components of the projectiles unfortunately may have landed in the School.  According to U.N. reports, such components apparently struck the roof of the School and caused significant casualties in one of the classrooms.  It should be noted that such a falling of components is incidental to any use of air-burst munitions, including for the purpose of smoke screening, illumination, and so on. 364 In conclusion, the incident involved the implementation of an effective smokescreen as a protective measure, in response to concrete threats of Hamas anti-tank units against IDF tanks operating in Beit Lahia.  The operational advantage of using the smokescreen was significant.(270)  IDF forces had not anticipated significant collateral damage in relation to this advantage.  The IDF is greatly saddened that civilians were injured, but this unfortunate fact does not render the original targeting decision a violation of the Law of Armed Conflict.

 
    (vii) UNRWA Vehicle Convoy: 8 January 2009

365 The IDF also investigated an incident in which, according to a U.N. review, “small arms fire” was directed towards the lead car of a UNRWA convoy in the Ezbet Abed Rabu area, which was then occupied by the IDF.  366 According to initial findings, on the same day of the incident, there were three different U.N. movements coordinated with the IDF in the area of Ezbet Abed Rabu.  There may have been a mutual misunderstanding concerning the coordination, which might have provided the relevant ground force with inaccurate information regarding the concrete movement.  367 The IDF has been concerned that errors in communication may have led to this incident, even though no injuries occurred.  Accordingly, immediate steps were taken to rectify the situation, including providing credible assurances that the security of United Nations personnel, installations and humanitarian operations would be fully respected and that there would be undertakings for improved liaison and more effective internal coordination within the IDF.

 
    (viii) UNRWA Vehicle: 14 January 2009

368 The IDF also conducted a field investigation into a complaint that a UNRWA vehicle came under fire in the Tel al-Hawa neighbourhood on 14 January 2009.  The investigation found that the vehicle bore no U.N. markings at the time of the firing, and was travelling in an area that international organisations had been told was forbidden for movement.  Most importantly, the vehicle was transporting a Hamas anti-tank squad, in clear violation of the prohibition on using humanitarian vehicles to support military operations.  Immediately after discharging the anti-tank squad, the vehicle proceeded erratically toward the IDF forces.  The IDF had due cause to think the vehicle was a Hamas car bomb, raising legitimate concerns about the security of its own forces.  369 The IDF’s use of force against an unmarked vehicle carrying a Hamas anti-tank unit comported with the Law of Armed Conflict.  The IDF did not deliberately target a U.N. vehicle; indeed, the vehicle bore no U.N. markings.  Furthermore, Hamas had turned the vehicle into a legitimate target by conscripting it for use in combat operations.  In addition, it was fully appropriate for the IDF to take into account the security of its forces, in assessing the legitimacy of the target, as discussed in Section V.A.

 
  (b) Incidents Involving Medical Facilities, Vehicles and Personnel

370 Israel is firmly committed to the protection of medical staff and facilities during armed conflict.  The IDF operated a medical situation room in the Gaza District Coordination and Liaison, which coordinated the evacuation from the combat zone of wounded and trapped civilians.  During the Gaza Operation, the medical situation room coordinated 150 different requests. 371 In addition to the general precautions followed to avoid civilian casualties described in Section V.C above, IDF trains forces at all levels to exercise extra caution to avoid harming medical crews and facilities.  In the Gaza Operation, the IDF reinforced those instructions.  In many cases IDF forces suspended their operations against legitimate military objectives when a medical vehicle or medical staff were in the vicinity.  In some of these instances, the IDF refrained from attacking medical vehicles even in cases where Hamas and other terrorist organisations were using them for military purposes.  Such restraint was not required under the Law of Armed Conflict, under which protection to medical vehicles may cease if the vehicles are being “used to commit, outside their humanitarian function, acts harmful to the enemy.”(271)  Indeed, as discussed in Section V.B above, Hamas itself was violating the Law of Armed Conflict by using ambulances to transport terrorist operatives and weaponry and to evacuate non-wounded terrorists from the battlefield, and by using hospitals and medical infrastructure as headquarters, situation-rooms, command centres and hiding places.(272) 372 The IDF launched an investigation into allegations about harm to medical facilities, vehicles and crews.  The investigation resulted in initial findings, which are now subject to review by the Military Advocate General and the Attorney General, and possibly the ultimate review by the Israeli Supreme Court.  The IDF Chief of the General Staff, Lt. Gen. Gabi Ashkenazi, has accepted the investigating colonel’s recommendations for further improvement of training and procedures, including practice by all forces in “incidents and responses” drills involving prevention of harm to medical crews, facilities and vehicles.  The Chief of the General Staff also ordered an examination of the operation of the humanitarian corridors opened for the benefit of the local population during the fighting. 373 In the meantime, the IDF received additional allegations, which it is investigating.  Many of the specific incidents mentioned by NGOs are still under investigation.  However, certain information is presently available, as summarised below.

 
    (i) Medical Facilities

374 The IDF investigated an incident that occurred on 10 January 2009, in which a building housing a mother-and-child clinic was damaged.  The operation targeting the building caused physical damage to the structure, but no injuries to anyone.  The operational goal was to destroy a Hamas storage site located in the same the building, which contained weapons and military equipment.  Hamas used this site in gross violation of its duty not to jeopardise civilians and medical facilities.  The first floor of the building served as a mother-and-child clinic, but there was no sign indicating the presence of the clinic, and its location had not been reported or otherwise known to the IDF prior to the military operation against the weapons depot. 375 The IDF carefully planned the operation, including by assessing any possible collateral damage to adjacent civilian facilities.  The IDF undertook the following measures in order to minimise possible incidental harm:  
  • Issued warnings in advance, by means of leaflets and telephone calls, calling on civilians to keep away from facilities serving Hamas and other terrorist groups, such as the said terrorist storage site and weapons workshop.
  • Issued, in addition, several minutes before the strike, an additional and effective early warning to the residents of the targeted building, by use of light weaponry in a manner not endangering those residents.  This early warning was effective and clearly understood by the residents, as confirmed before the strike and by the fact the there were no casualties.
  • Used a precision munition and fired only one munition.
  • Calculated the direction and the angle of the strike to minimise collateral damage.
  • A direct hit on the target was verified, inter alia, by secondary explosions that indicated there were, in fact, a substantial amount of explosives inside the building.
376 The IDF has also been criticised for attacking the Khan Younis European Hospital on 8 January 2009, resulting in damage to the generator but no injuries.  This incident is currently under field investigation, as are allegations concerning damage to infrastructure (but no injuries) at al-Quds hospital.

 
    (ii) Medical Vehicles

377 The IDF investigated a number of reported cases involving attacks on medical vehicles.  Some of these cases involved vehicles being driven in a suspicious manner, often at night, without prior coordination with IDF forces and without clear markings of medical use (for example, through flashing lights).  In these situations, IDF soldiers were concerned that the vehicles might be used for military purposes, such as a suicide attack, and in many cases fired warning shots, consistent with applicable procedures under the Law of Armed Conflict.(273) The IDF investigation concluded that IDF forces were mistaken in some of these assessments.  However, as discussed in Section V.A, the standard against which the action is gauged is one of reasonableness of the commander making decisions in real time.  Under this standard, the conduct of IDF forces was reasonable and did not demonstrate the intent or recklessness necessary to elevate such action to the level of violation of the Law of Armed Conflict. 378 One incident, for instance, took place on 4 January 2009, around 11:00 p.m., near the neighbourhood of A’ghalin.  A vehicle was travelling without flashing lights on a main road that the IDF was monitoring in an effort to prevent terrorist movements.  The vehicle drove toward an IDF tank.  The soldiers in the tank had no way of knowing the vehicle was an ambulance, and suspected that it was a car bomb.  Accordingly, these soldiers tried to stop the vehicle by using a number of warning measures, including firing warning shots in the air, followed by warning shots near the vehicle.  When the ambulance was only 100 metres away from the tank, posing a potentially serious threat to the IDF force, the force opened fire, in a manner that minimised the risk to its passengers.(274)  After these warning shots, the vehicle turned around and drove away. 379 Another incident occurred on 13 January 2009 in the Zeitun neighbourhood, around 3:30 p.m.  An IDF force sheltering in a structure, north of the Nezarim junction, received a credible warning that a terrorist squad intended to attack the structure.  Shortly after the warning, the force identified an ambulance driving quickly towards the junction, bypassing a roadblock established on the road and turning toward the structure.  The soldiers took a number of warning measures, including firing warning shots in the air, in order to stop the vehicle.  Despite these warnings, the ambulance continued toward the structure.  The ambulance came within 50 metres of the structure, at which point the IDF soldiers fired at the driver.  The vehicle then turned around and drove off.  No casualties were reported in this incident.

 
    (iii) Medical Personnel

380

IDF investigations into allegations regarding health service staff wounded or killed during the Gaza Operation revealed that some of the reported cases were based on false information.  For instance, Palestinians reported that a member of a Palestinian medical team was killed as a result of IDF strike on 3 January 2009, on the residence of the Dababish family in the Sheikh Radwan neighbourhood.  The IDF investigation found that the person reported killed was in fact alive.  Similarly, the IDF received reports that an IDF helicopter had fired on an ambulance in Beit Lahia, near the Abu-Ubeida School, on 4 January 2009 and killed the ambulance driver and two paramedics.  In this case, the “deceased” ambulance driver was interviewed on a Hamas website a few days after the incident.  The IDF investigation found that the only Palestinian killed in that incident was in fact a Hamas operative.

 
  (c) Incidents Involving Multiple Civilian Casualties
381 The IDF acknowledges a number of unfortunate incidents during the Operation in Gaza, in which multiple civilians were harmed.  Consistent with the high standards to which it holds its armed forces, Israel is rigorously investigating these incidents, and will continue to do so with respect to additional incidents brought to its attention. 382 As a first step, the IDF conducted a field investigation examining seven incidents in which the IDF allegedly harmed civilians.  With respect to these specific incidents, the investigation concluded that IDF operations did harm civilians who were not directly participating in the fighting.  The IDF is deeply saddened by the deaths and injuries of all civilians and especially of children.  The harm to these individuals was not intentional, and based on the facts currently known — and subject to the pending review of the Military Advocate General and the Attorney General — there appears no basis for the serious charges advanced by some. 383 To the contrary, where the risk of unintentional harm to civilians could be foreseen, the IDF fully complied with the Law of Armed Conflict by taking many measures to minimise this risk, including using precise intelligence and providing warnings prior to the attack.  That harm occurred despite these precautions is extremely unfortunate, but it does not constitute a violation of law attributable to the IDF.  To the contrary, a significant proportion of the incidents occurred as a result of Hamas’ illegitimate use of Palestinian civilians, taking cover amongst the civilian population and using civilian facilities and structures as part of its terrorist operation against Israel. 384 Investigation of the following incidents reached the following preliminary conclusions (other incidents are still under investigation).

 
    (i) The Al-Daia Family Residence, Zeitun Neighbourhood: 6 January 2009

385 During this extremely unfortunate incident, members of the Al-Daia family were killed when the Israeli Air Force bombed their house. 386 The IDF has concluded that this tragic event was the result of an operational error.  An investigation determined that the IDF intended to strike a weapons’ storage facility located in a building next to this residence.  However, the IDF erroneously targeted the Al-Daia residence, rather than the weapons storehouse.  Although the IDF did provide warning shots to the roof of the Al-Daia residence, other warnings (such as the warning phone call) were made to the building actually containing the weapons, not the Al-Daia residence.  387 The IDF is examining how the unfortunate operational error occurred, in order to reinforce safeguards and to prevent its recurrence.  Israel deeply regrets the tragic outcome.  This is the kind of mistake that can occur during intensive fighting in a crowded environment, against an enemy that uses civilian neighbourhoods as cover for its operations.  IDF forces did not intentionally target civilians.  This lack of unlawful intent has been a critical factor, in past incidents involving operational mistakes by other armies (such as NATO’s erroneous bombing of the Chinese Embassy in the former Yugoslavia), in determining that no violation of the Law of Armed Conflict occurred.(275)  Similarly, although its attack on the Al-Daia residence was a tragic error, it did not constitute a violation of the laws of war.

 
    (ii) The House of Nazar Ri’an: 1 January 2009

388 During this episode, which was widely reported by NGOs, Ri’an and members of his family were killed in an aerial strike that hit their home.  Ri’an was a senior Hamas operative, but he was not the target of the attack, although the IDF legitimately could have treated him as a military target due to his central role in planning and executing terrorist attacks.  Instead, the operational goal of the strike was to destroy Hamas’ central compound in the Jabaliya refugee camp.  The compound included several buildings that served as storage sites for large quantity of sophisticated weapons.  The IDF limited the planned attack to the weapons storage site and did not seek to injure or harm Ri’an or, of course, any members of his family. 389 In an effort to ensure that it destroyed only the storage facilities, and did not harm civilians residing in the buildings, the IDF issued several warnings before the attack.  These included not only general leaflets and telephone calls, alerting civilians to avoid facilities serving Hamas and other terrorist groups, but specific phone calls to the residents of the targeted buildings, notifying them of the planned strike and warning them to evacuate the premises.  The IDF also fired two separate rounds of preliminary warning shots with light weapons, 13 minutes and 9 minutes before the strike, providing sufficient time for residents to evacuate.  The residents evidently understood these early warnings, as a group of them did leave the building, a fact confirmed by IDF surveillance before proceeding with the strike.  The IDF observed this group evacuation and drew the reasonable conclusion that the buildings (including Ri’an’s house) were empty.  Only then did the IDF launch the strike. 390 Following the strike, secondary explosions were visible.  This confirmed that Hamas used the buildings for weapons storage, and therefore it was a legitimate military objective according to the Law of Armed Conflict.  Only later was it discovered that, Ri’an and his family chose to remain in the building after others had evacuated, leading to their death.  391 The deaths of the Ri’an family members were tragic.  Even so, it must be underscored that the IDF took appropriate steps to tailor its military strike to a proper military objective (the weapons storage site) under the cover of a civilian residence, and to extricate civilians from possible harm.  To that end, the forces complied with international norms by giving effective advance warnings to at-risk civilians.  That some civilians heeded these warnings, while the Ri’an family apparently did not, does not render the IDF’s action unlawful.

 
    (iii) The House of Dr. Abu el Eish: 17 January 2009

392 The IDF thoroughly investigated this incident, in which the doctor’s three daughters were killed.  The investigation concluded that an IDF tank fired two shells, which resulted in these unfortunate casualties. 393 The investigation found that the IDF force operated in the area of Sajaiya for several days, during which they were engaged in face to face combat within short range of Hamas terrorist units.  The IDF forces discovered tunnels used for ambushing and attacking IDF forces, and identified homes that were booby-trapped. 394 On Friday, 16 January 2009, the IDF force came under sniper and mortar fire in an area laden with explosives and IEDs.  The IDF force identified and located the source of fire as a house adjacent to that of the doctor’s.  The IDF returned fire and then saw several figures moving suspiciously in the upper level of a house nearby, which was in fact, Dr. Abu El-Eish’s house.  The IDF troops concluded that these figures were spotters directing the arms fire of the snipers.  Hamas had used this method of target location throughout the Gaza Operation.  Still, under heavy fire, the commander of the force waited about 20 minutes in an effort to ensure that the suspicious figures were in fact Hamas operatives, and that civilians would not be at risk before ordering the attack on the house.  Only then did he give the order to open fire on the presumed spotters. 395 Following the firing of shots, the IDF soldiers heard screams from the direction of the house, and immediately halted all fire.  When contact was made with the doctor, the IDF force made sure that ambulances could evacuate the injured via the Erez Crossing for immediate emergency medical treatment in Israel. 396 In the days leading up to the incident, officers in the Coordination and Liaison Administration had contacted Dr. Abu El-Eish several times to urge him to temporarily evacuate his home, as many others in the neighbourhood already had, because of Hamas operations and the intense fighting that was already taking place in that area for several days.  In addition to the personal contact made directly with Dr. Abu El-Eish, the IDF issued warnings to the residents of Sajaiya by dropping thousands of leaflets as well as issuing warnings via Palestinian media outlets.  Dr. Abu El-Eish chose to remain in the house, with his family, despite the specific personal warnings he received and the evident risks associated with Hamas sniper activity from the adjacent building. 397 The IDF regrets the tragic deaths of Dr. Abu El-Eish’s daughters.  However, considering the constraints of the battle scene, the threats endangering IDF forces and the reasonable estimation of the forces that the house was being used to direct sniper fire, the decision to target the building was intended only to respond to a perceived threat, and in no way breached the Law of Armed Conflict. 

 
    (iv) Attack on Trucks Carrying Oxygen Tanks: 29 December 2008

398 This incident took place during the first stage of the Gaza Operation, in the area of the Jabaliya refugee camp.  IDF surveillance identified a truck carrying objects that looked like Grad rockets based on their size and shape.  The objects were being loaded into the truck next to a recognised Hamas rocket manufacturing site, and close to Hamas’ central base.  The loading point was also near an area frequently used by Hamas to launch rockets towards Israel. 399 On the basis of this information, the IDF concluded that the truck was carrying rockets from the Hamas rocket manufacturing facility to a launch site.  In fact, the truck was carrying oxygen tanks and not rockets.  The strike against the truck, together with the secondary explosions of the oxygen tanks, killed four Hamas operatives and four civilians.  400 Though there was misidentification of the oxygen tanks as rockets, the error was caused by the proximity to terrorist sites used for rocket launches.  There was no intent to attack a civilian object or to place civilians in undue danger.(276)  Destroying rockets before they reach a launch site was considered an urgent operational objective.

 
    (v) Alleged Attacks on Mosques

401 In accordance with the Law of Armed Conflict, IDF rules of engagement expressly forbid attacks directed against sacred places, unless they are used for military purposes.  As explained in details above, Hamas frequently used mosques for such purposes, in particular for the storage of weapons and munitions.  As part of the investigation into civilian-related incidents, the investigating Colonel examined allegations regarding alleged IDF attacks on two religious sites, in which it was claimed that civilians were injured or killed.  402 One incident involved an alleged attack against Maqadme Mosque in Beit Lahia on 3 January 2009.  The IDF inquiry revealed that the mosque was not attacked at all.  The individuals reported as killed in this incident were in fact killed in other incidents not involving the mosque.  Further, the supposed “civilians” who were casualties of the attack were in fact Hamas operatives killed while fighting against the IDF. 403 The second incident involved alleged strikes against the Rabat Mosque in Beit Lahia on 9 January 2009.  The IDF investigation found no evidence that such a strike took place.  
(3) General Concerns about IDF Operations
404

In addition to the three IDF field investigations regarding specific incidents, discussed above, the IDF also examined two broad areas of concern about IDF operations, involving the use of munitions containing white phosphorous and damage to infrastructure and destruction of buildings by ground forces.  The findings of those investigations (which remain subject to review by the Military Advocate General and the Attorney General) are discussed below.  This Section also addresses the lawfulness of the IDF’s limited use of flechette munitions.

 
  (a) The Use of Munitions Containing White Phosphorous and Flechettes

405

The IDF uses only weapons and munitions defined as legal under international law and authorised as such by the relevant IDF authorities, including MAG officers.  In this regard, the IDF complies strictly with the applicable restrictions governing the use of certain weapons and munitions.  Furthermore, all weapons and munitions are employed in accordance with the general rules of International Humanitarian Law such as distinction and proportionality.  Of the many types of munitions employed by IDF forces during the Gaza Operation, international organisations have largely focused their criticism on munitions containing white phosphorous and flechettes.

 
    (i) Use of Munitions Containing White Phosphorous

406 During the Gaza Operation, IDF forces used munitions containing white phosphorous, which is in common use by militaries worldwide.  In particular, IDF used two different types of munitions containing white phosphorous – exploding munitions and smoke projectiles.   407 Exploding munitions containing white phosphorous.  A small number of exploding munitions containing white phosphorous were used by the IDF during the Operation as mortar shells fire by ground forces and as rounds from naval vessels.  These munitions were fired only at open unpopulated areas and were used only for marking and signalling rather than in an anti-personnel capacity.  In one single incident, in an open uninhabited area, ammunition containing phosphorous was used by ground forces to uncover tunnel entrances that served for terrorist purposes.  No exploding munitions containing white phosphorous were used in built-up areas of the Gaza Strip or for anti-personnel purposes.  The restrictions on the use of incendiary weapons under Protocol III (relating to Incendiary Weapons) to the Convention on Certain Conventional Weapons (“CCW Protocol III”)(277) were observed at all times, even though Israel is not a party to the Protocol (for further elaboration, see below).    408 None of the instances in which exploding munitions containing white phosphorous were used by the IDF during the Gaza Operation has given rise to particular criticism.  Still, on 7 January 2009, although not required under international law, it was decided as a precautionary measure, in order to minimise the risk to civilians, that the IDF would cease to use such exploding munitions during the Gaza Operation.  IDF forces fighting in Gaza were instructed to act accordingly.(278)    409 Smoke projectiles containing white phosphorous.  The second and main type of munitions containing white phosphorous employed by the IDF during the Gaza Operation was smoke screening projectiles.  In the course of the ground manoeuvre, the IDF used smoke shells containing felt wedges dipped in white phosphorous.  These shells contained relatively small amounts of white phosphorous and were used exclusively to create smoke screens for military requirements, such as camouflaging armoured forces from anti-tank squads deployed by Hamas in Gaza’s urban areas.  Smokescreens are an indispensable tool in ground manoeuvres and were extremely effective during the Gaza Operation in protecting IDF forces from Hamas’ anti-tank capabilities.  410 In fact, these smoke-screening projectiles are designed to create a protective smoke screen for battlefield purposes, and were used exclusively for this purpose by the IDF during the Gaza Operation.  The smoke projectiles may, on occasion, produce incidental incendiary effects, but this does not make them incendiary weapons for purposes of international law. 

 
      (a) International Law Applicable to the Use of Incendiary Weapons

411 The use of munitions containing white phosphorous is not prohibited by any international treaty, including CCW Protocol III.  Article I of CCW Protocol III defines “incendiary weapon” as “…any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target.”  Article I further expressly excludes from its purview: “…Munitions which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems.” 412 Accordingly, although Israel is not a party to CCW Protocol III, it is clear that the use of munitions containing white phosphorous as a smokescreen is not regulated nor prohibited by it.  413 The fact sheet on white phosphorous by the Federation of American Scientists rates the lethality of white phosphorus as “low” and notes its current status as being “in use around the world,” including by the U.S. and other military forces, for a variety of purposes.(279) Although certain NGOs criticised use of weapons containing white phosphorous by U.S. forces in Iraq, senior U.S. officials made clear that U.S. use was consistent with international law and State practice.(280)  414 Although the use of weapons containing white phosphorous for smoke-screening purposes is not prohibited by any international treaty, it is still subject to the applicable norms of the Law of Armed Conflict, including the principles of distinction and proportionality, which regulate the employment 

 
      (b) Compliance With the Principle of Distinction

415 The obscurant smoke shells were used by the IDF for military purposes only (e.g. camouflaging armoured forces from anti-tank squads deployed by Hamas in Gaza’s urban areas), and were not aimed at civilians.  The use of smoke obscurants proved to be highly effective at cloaking IDF forces and obstructing enemy lines of sight.  At no time did IDF forces have the objective of inflicting any harm on the civilian population.   416 Some have suggested that air-burst white phosphorous munitions are by nature indiscriminate because they are designed to scatter over a wide area and therefore cannot be targeted precisely at a military objective.  However, smoke projectiles are not designed or intended to be lethal or destructive, and as a result they are not used for targeting purposes.  Rather, they are intended to disorient and neutralise the enemy by creating obscuration of the enemy’s field of view (and therefore the objective in using them depends to a large degree on achieving a wide area of effect).  Indeed, white phosphorous smoke screen projectiles worked well in serving their intended objective of protecting Israeli troops during the conflict.  Therefore, smoke obscurants containing white phosphorous were not used for targeting purposes and cannot be classified as an indiscriminate weapon; otherwise, any smoke-screening means would be prohibited, in contrast to the well-established practice of militaries worldwide.

 
      (c) Compliance With the Duty to Minimise the Risk to Civilians

417 During the Gaza Operation, the IDF used smoke-screening projectiles containing white phosphorous in a manner corresponding with its duty to minimise the risk to civilians.  Abstaining from using smokescreens in densely populated areas of Gaza, i.e. precisely in those areas where Hamas deployed most of its forces, would undoubtedly have compromised the safety of Israeli troops and would increase the risk for civilians, as a result of cross-fire.  Indeed, in one incident during the combat in Tel al-Hawa on 15 January, IDF forces came under fire from both anti-tank and small arms fire, and an IDF armoured bulldozer suffered a direct hit from an anti-tank weapon.  The attack was possible because no white phosphorous smokescreen had been deployed.  In cases where smoke obscurants were used, they proved to be a very effective means of protecting Israeli forces and in many cases prevented the need to use explosive munitions whose impact would have been considerably more dangerous. 418 Some have suggested that IDF could have used less harmful munitions, or used the munitions in a less harmful manner, to achieve the same military objective, for example, by using smoke munitions without white phosphorous or by firing the munitions as ground-burst rather than air-burst projectiles.  However, neither of these alternatives provides the same military advantages.  White phosphorous munitions have significant battlefield advantages such as the speed of deployment and the effectiveness of blocking observation and targeting systems.  Targeting the munitions at the ground rather than exploding them high in the air would fail to achieve the area of dispersal required for military purposes and would actually result in much more severe damage to buildings and persons on the ground. 419 The IDF took several precautions and other measures that were appropriate with respect to these particular munitions.  First, the munitions were used only for the purpose for which they were designed, i.e. to create smoke screens, rather than to attack personnel or destroy buildings, purposes for which IDF has a variety of more effective munitions.  Second, the use of felt wedges soaked in white phosphorous tends to further reduce dispersal of the substance and its incendiary side effects as compared to exploding munitions containing white phosphorous.  Third, the smoke projectiles were employed using delay fuses which release the felt components of the projectile at a distance of at least 100 metres above the ground.  This method (as opposed to the use of contact fuses), is consistent with the use of the projectiles for smoke-screening purposes only.  Furthermore, air-bursting the munitions at a considerable distance above ground meant that it was less likely that any person or building would be harmed by the explosions.  Fourth, after reports of an incident on 15 January 2009 during combat in Tel al-Hawa in which white phosphorous smoke projectiles set fire to a UNRWA warehouse, an IDF directive was issued, effective through the end of the Gaza Operation, establishing a safety buffer of several hundred metres from sensitive sites when using smoke projectiles. 420 All these precautions may not have eliminated the risk of civilian casualties, but the Law of Armed Conflict does not require such a result.  It only requires parties to minimise the risk to civilians to the extent possible, subject to the legitimate military necessities.  As explained above, the use of smoke obscurants by IDF fully complied with this rule. 

 
      (d) Compliance With the Principle of Proportionality

421 The issue of proportionality turns on the reasonableness of a commander’s decision to use a particular munition in a particular context, taking into account the expected military benefit and the expected collateral damage.  Second-guessing the reasonableness of a commander’s decision in a rapidly evolving and complex battlefield situation should not be done lightly, and must take into account the information available to the commander at the time of the decision (not what actually occurred) and the value of the military objective to a reasonable commander (rather than to a third-party observer).  In the case of smoke munitions containing white phosphorous, the expected military benefit was that they would protect Israeli forces from attack: a compelling military objective.  Against this objective, one must weigh the anticipated risk of harm to civilians and property from the use of smoke munitions, which are designed to be a non-lethal type of munition.    422 The non-lethal nature of smoke screens when compared to the effect of explosive munitions was particularly important, given that Hamas and other terrorist organisations sought to blend in with the civilian population, making it difficult or impossible to use explosive munitions without inflicting substantial civilian casualties.  423 One particularly well-known incident, involving the UNRWA warehouse facility in Tel al-Hawa, is discussed in detail in subsection V.D(2)(a)(ii) above.  The incident demonstrates the reasonableness of the decision to use smoke-screening munitions containing white phosphorous in that instance, despite the fact that it ended up causing unintended collateral harm to the U.N. facility.    424 While the actual (as opposed to the anticipated) extent of damage caused by the use of munitions containing white phosphorous is not clear, Israel recognises the unfortunate reality that a number of civilians and civilian structures might have been harmed by such use during the Gaza Operation.  Israel sincerely regrets every civilian injury that may have occurred, but notes that evidence regarding the extent of collateral damage caused by these munitions in Gaza is unclear.    425 Several civilians appear to have been harmed by falling white phosphorous shell casings.  Absent a technical malfunction, such a shell falls empty and contains no white phosphorous or explosive mechanism.  Nevertheless, a direct hit by such an object may cause injury or even death.  It should be noted that IDF forces are not immune from this risk.  Indeed, a few years ago an IDF soldier was killed when a shell casing from an air-burst (non-phosphorous) munition landed on him.   426 There appears to be insufficient evidence to conclude that white phosphorous caused extensive injuries to civilians in the course of the Gaza Operation.(281)  While this may, in fact, have occurred in some cases, it is not clear to what extent this may have happened.  However, concrete complaints on damages and harm caused by the use of smoke munitions containing white phosphorous are still being investigated by the IDF and any definite conclusions in this regard would be premature.   427 Finally, in addition to some civilian injuries, the use of smoke projectiles containing white phosphorous appear to have set fire to a number of civilian buildings, causing damage to several of them.  Such fires were an unwelcome effect of IDF’s operations, similar to other damage caused when densely populated areas become a battlefield.  However, given the fact that thousands of smoke screen projectiles were launched by IDF, each projectile with 116 felt wedges, it does not appear that the damage from this use can be regarded as excessive.  428 Overall, the operational benefits of the smokescreens in protecting the safety and security of IDF troops far outweighed the anticipated risk to civilians entailed by their use.  It is with regard to these expected effects, rather than the actual harm, that the proportionality analysis must be conducted.  In any event, the scope of casualties and damage actually resulting from use of the smokescreen projectiles appears to have been relatively limited compared to the significant military advantage gained by smoke-screening.  

 
      (e) Investigations and Lessons Learned

429 In light of claims that the IDF made illegal use of munitions containing white phosphorous during the Gaza Operation, the IDF launched a field investigation into this matter.  The investigation has now been completed and has uncovered no violations of international law, although – as explained in Section V.C(5) above – further stages of the review are ongoing. 430 After reviewing the conclusions of the investigation, the Chief of the General Staff emphasised the importance of a clear doctrine and orders on the issue of various munitions which contain phosphorous.  In particular, Lt. Gen. Ashkenazi ordered that any use of phosphorous for purposes other than smoke obscuration be treated as exceptional, in order to minimise the risk to civilians.  These instructions are currently being implemented in IDF orders and operational plans.

 
    (ii) The Use of Munitions Containing Flechettes

431 Flechettes — anti-personnel darts typically dispersed by means of an explosive shell — were also used by IDF forces during the Gaza Operation to a very limited extent.  Flechettes are a legal munition, and are not prohibited under the Law of Armed Conflict or under specific conventional prohibitions or restrictions.  Many armies in the world have employed them in a variety of armed conflict situations.  Despite the fact that these munitions have been in widespread use around the world for decades, governments have never reached agreement to ban or even restrict the use of such weapons.(282) 432   Naturally, the use of flechettes (as all other weapons) must comply with the general requirements of the Law of Armed Conflict discussed above.  Accordingly, the use of flechette munitions is regulated both by the IDF standing rules of engagement, as well as by specific professional instructions.  These instructions are designed to ensure respect for the legal requirements of distinction and proportionality, as well as the requirement to minimise the risk to civilians. 433 In 2002, the issue of employing flechette munitions by the IDF in the course of military operations in the Gaza Strip was brought before the Israeli Supreme Court (sitting as the High Court of Justice).(283)  The allegation before the Court was that flechette munitions were by nature indiscriminate and therefore illegal under international law.  The Court squarely rejected this argument, finding that flechettes were not covered by the CCW.  More generally, the Court found that “a prohibition against the use of flechette shells has never received significant international support.”  It therefore concluded that this type of weapon was not illegal under the Law of Armed Conflict. 434 The Court also refused to prohibit IDF’s use of flechettes in the Gaza Strip.  In doing so, the Court observed that IDF “directives restrict the use of flechettes to circumstances under which there exists no significant chance of injuring innocent civilians, and they may only be used against those suspected of activities that will injure the IDF forces or Israeli civilians.”  The Court observed that the decision whether or not to use flechettes in concrete circumstances would therefore be made by the competent field commander taking these restrictions into consideration.  435 Subsequent to this decision, IDF forces continued to make limited use of flechette munitions in the Gaza Strip, including during the Gaza Operation.  Following the Operation, several complaints have been made concerning their use in particular instances.  These claims are currently being examined by the relevant IDF authorities, and it is therefore premature to comment on those incidents.  As with all other IDF investigations, however, it is certain that any findings shall be subject to review by the MAG, the Attorney General, and possibly an ultimate review by the Israeli courts.

 
  (b) Destruction of Private Property

436 Some destruction of private property and infrastructure is an unfortunate but inescapable by-product of every armed conflict.  While recognising this reality, the Law of Armed Conflict requires that the damage be justified by military necessity.  For instance, Article 23(g) of the Hague Regulations of 1907 states that it is forbidden “to destroy or seize the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war.”  437 The investigations thus far reveal that although IDF forces were instructed to operate carefully at all times and to minimise collateral damage to civilian property to the extent possible, extensive damage to civilian infrastructure and personal property did occur in the course of the Gaza Operation.  Much of the damage was demanded by the necessities of war and was the outcome of Hamas’ mode of operating. 438 As explained in Section V.B above, Hamas based its main line of defence on civilian infrastructure in the Gaza Strip (i.e. buildings, infrastructure, agricultural lands etc.), and specifically on booby-trapped structures (mostly residential), the digging of explosive tunnels and tunnels intended for the moving of fighters and weaponry.  This created an above-ground and underground deployment by Hamas in the Gaza Strip’s urban areas.  During the Gaza Operation, IDF troops were forced not only to fight the terrorists themselves, but also to deal with the physical infrastructure prepared in advance by Hamas and other terrorist organisations. 439 As part of this challenge, IDF forces demolished structures that threatened their troops and had to be removed.  These included (1) houses which were actually used by Hamas operatives for military purposes in the course of the fighting, (2) other structures used by Hamas operatives for terrorist activity, (3) structures whose total or partial destruction was imperatively required for military necessities, such as the movement of forces from one area to another (given that many of the roads were booby-trapped), (4) agricultural elements used as cover for terrorist tunnels and infrastructure, and (5) infrastructure next to the security fence between Gaza and Israel, used by Hamas for operations against IDF forces or for digging tunnels into Israeli territory. 440 Despite the enormous efforts made by Hamas and other terrorist organisations, who rigged a substantial number of buildings to explode in the areas where IDF forces were present, IDF actions to destroy such buildings in advance successfully prevented their detonation while IDF forces were in them 441 In the context of this complex battlefield, Israeli forces were instructed to operate carefully at all times, and to minimise collateral damage to the extent possible.  For purposes of the Law of Armed Conflict, the extent of the damage to private property and infrastructure is not itself indicative of a violation.  Rather, as already explained, in each case it must be considered whether a legitimate military purpose existed and if the damage to property was proportional to this aim.  Furthermore, unanticipated damage and damage caused by Hamas cannot be blamed on Israeli forces. 442 In light of the multiple allegations raised against the IDF in connection with the destruction of residential and public buildings during the conflict, the IDF launched a full investigation into allegations of excessive damage to civilian objects during the Gaza Operation.  The IDF investigation (which is now being examined by the Military Advocate General) confirmed that although relatively extensive damage was caused to private property, the IDF’s activities which caused this damage complied with the Law of Armed Conflict.  The Law of Armed Conflict allows the destruction of private property where, as here, it is a matter of military necessity.  With the exception of a single incident, which was immediately halted by the relevant Commander and was dealt with using disciplinary measures, the investigation did not find any incidents in which structures or property were damaged as “punishment” or without an operational justification. 443 The investigation showed that in all the areas of operation, the decision to authorise the demolition of houses was made only by high ranking officers.  In addition, the destruction of buildings was only initiated after it was determined by the forces that they were vacant in order to minimise civilian casualties.  Accordingly, as far as the investigation was able to determine, no civilians were harmed during the demolition of infrastructure and buildings by IDF forces.  444 The investigation showed that, in many cases, the preparations made by Hamas and other terrorist organisations were responsible for the significant damage caused to houses.  As explained above, unanticipated damage to some buildings occurred due to the existence of subterranean tunnels that were unknown to IDF forces.  In other cases, the damage was due to the secondary explosions caused by the detonation of explosive devices or weaponry placed by Hamas within the structures.  This was illustrated by an incident in which a building in one of Gaza’s northern neighbourhoods was fired upon, resulting in the unexpected detonation of a chain of explosive devices planted by Hamas, damaging many other buildings in the neighbourhood. 445 It should be emphasised that IDF orders and directions, dealing with the destruction of private property and applicable in the Gaza Operation, stressed that all demolition operations should be carried out in a manner that would minimise to the greatest extent possible the damage caused to any property not used by Hamas and other terrorist organisations in the fighting.  Nevertheless, due to the complex dilemmas commanders faced with regard to decisions on destruction of property in the course of fighting in Gaza, as a result of Hamas’ mode of operations, one of the lessons learned was that there should be a set of clear rules in this regard that will assist commanders in taking such decisions in the future.  Accordingly, the Chief of the General Staff instructed the creation of such clear regulations and orders, as well as a clear combat doctrine, with regard to demolition of infrastructure and structures.    
FOOTNOTES
(256) The international community and national fora must respect and support national investigations currently in progress in Israel. To the extent that external organisations have gathered information related to the Gaza Operation, in the interest of justice, they should provide the information and any evidence on which it is based to Israel to facilitate those investigations. This is the essence of the principle of complementarity.

(257) The initial field investigations examined allegations regarding the following incidents, in chronological order: (1) Imad A’kel mosque (Jabaliya, 29 Dec); (2) a truck carrying oxygen tanks (Jabaliya, 29 Dec); (3) a medical team (Gabel Kashef, 31 Dec); (4) Ibrahim al-Maqadme mosque (Gaza, 2 January); (5) a house during medical treatment of wounded civilians (Sheikh Radwan, 3 January); (6) the American College (Beit Lahia, 3 January); (7) an ambulance (Beit Lahia, 4 January); (8) an ambulance (Sheikh A’jalin, 4 January); (9) the UNRWA Asma School (Shati, 5 January); (10) the Al-Daia family residence (6 January); (11) an UNRWA school (Jabaliya, 6 January); (12) the Deeb family (Jabaliya, 6 January); (13) an UNRWA convoy in Saleh A-Din street/Ezbet Abed Rabu (8 January); (14)) a mother and child clinic (Sajaiya, 10 January); (15) the UNRWA compound (Gaza, 15 January); (16) the residence of Dr. Abu El-Eish (Jabaliya, 16 January); and (17) an UNRWA school (Beit Lahia, 17 January).

(258) As of 28 May 2009, an indictment has been filed by the IDF Prosecution against soldiers in connection with an incident of theft from a Gaza resident during the Operation.

(259) Following the Gaza Operation several complaints were received alleging use by IDF troops of civilians in Gaza as human shields. This practice is strictly prohibited by IDF Standing Orders, as detailed above. Therefore, every complaint received in this regard was referred directly to Military Police for investigation.

(260) See Letter from the Secretary-General to the President of the Security Council, 4 May 2009, at 2, available at http://www.unhcr.org/refworld/docid/4a292c8dd.html (expressing “appreciation for the cooperation provided by the Government of Israel to the Board”).

(261)See Press Release, Israel’s reaction to the U.N. Board of Inquiry report, Israel Ministry of Foreign Affairs, 5 May 2009, available at http://www.mfa.gov.il/MFA/About+the+Ministry/MFA+Spokesman/
2009/Press+releases/Israel_reaction_UN_inspection_committee+
report_5-May-2009.htm.

(262) This test is significantly different from the one the U.N. Board of Inquiry applied, which asked only whether the physical premises of U.N. facilities had been affected – a standard described as “inviolability” under diplomatic law.  Unlike this standard adopted by the Board of Inquiry, the Law of Armed Conflict does not impute a violation from the mere fact that a particular site may have incurred damage, incidental to the targeting of a legitimate military objective.

(263) The IDF internal investigation provided important context for this incident.  It revealed that Hamas often used 120mm mortars to attack Israeli towns and villages near the border of Gaza.  Hamas terrorists had acquired significant expertise with these weapons and improved the accuracy of their technique; this tactic was central to Hamas’ method of fighting the IDF in urban areas.  Hamas’ use of 120mm mortars posed a serious threat to IDF ground forces.  Only a day before the incident in question, Hamas mortar fire had injured 30 IDF soldiers.

(264) Associated Press, Residents: Hamas Militants Staged Attacks from Cover of UN School, 6 January 2009, available at http://www.wkyt.com/home/headlines/37163864.html.

(265) The U.N. Board of Inquiry did not examine any of the critical issues required for a Law of Armed Conflict Analysis.  Thus, as it admitted, it was “unable to reach any conclusion whether or not mortars were being fired and directed against the IDF from near to the school.”  U.N. BoI Report ¶ 23.  The Board also conceded, with respect to people killed or injured outside the school, that “the extent to which they could be categorized as acting in a non-civilian capacity could not be adequately investigated within the Board’s constraints.”  Id. ¶ 28.  While the Board observed that in its opinion, “the means of response to an indentified source of mortar fire that would have carried the least risk to civilians and property … would have been a precisely targeted missile strike,” it conceded that “[i]t was not in a position to assess whether such a means of response was available to the IDF at the time and, if it was not, the length and consequences of any delay until it might have become available.”  Id. ¶ 24.  The Board thus did not attempt to engage in the type of analysis required by the Law of Armed Conflict, which (as discussed in Section V.A above) critically depends on the tools and information available at the time of targeting decisions, not hindsight judgments about alternative strategies that may or may not have been feasible.

(266) The U.N. Board of Inquiry reached its “conclusions” on the incident without fully weighing this critical fact.  It acknowledged that — as with all of the incidents covered by its report — “it was not within its scope to assess general allegations or denials” regarding “possible military activity close to United Nations premises and possible military use of nearby buildings.”  U.N. BoI Report ¶ 97.
(267) The U.N. Board of Inquiry acknowledged receiving information that “some occupants of the apartment building had Hamas affiliations,” but did not consider itself sufficiently informed to reach a conclusion “as to whether or not the building was being used by Hamas for operational purposes.”  U.N. BoI Report ¶ 35.
(268)The U.N. Board of Inquiry stated that “it was unable to reach any conclusion” as to “whether Hamas might have been using the Presidential Guest House as a command and control centre or as a munitions store,” although the UNSCO personnel (for their part) had “no reason to believe that it was.”  U.N. BoI Report ¶ 73.
(269) The U.N. Board of Inquiry confirmed these critically important facts, while contending that aerial monitoring during the day should have revealed civilians queuing to register.  U.N. BoI Report, ¶ 11, 15.  The Board did not suggest that aerial monitoring in the evening, when the missile was actually fired, should have been expected to detect a civilian presence at a site that had not yet been notified to the IDF for use as a shelter.  Nonetheless, the Board concluded that “the IDF carried out a direct and intentional strike on United Nations premises.”  Id. ¶ 16.
(270) The U.N. Board of Inquiry reached its “conclusions” regarding the incident without making any findings “as to whether Hamas units were present in the Beit Lahia neighbourhood …, [or] whether IDF forces were exposed to fire or whether the laying of a smokescreen or other reactive measures were necessary in consequence.”  U.N. BoI Report ¶ 64.  Yet these factors are essential for any proper analysis of distinction or proportionality, because (as explained in Section V.A above), both tests require consideration of legitimate military objectives.  Proportionality in particular requires the weighing of the importance of such objectives against the likelihood of civilian harm, from the perspective of a “reasonable commander” at the time.  Nor did the Board apparently consider any precautions taken by the IDF to minimize civilian casualties.  Instead, the Board simply concluded that “whatever precautions were taken by the IDF in the current case, they were clearly inadequate in relation to the use of an extremely dangerous substance in a populated urban area.”  Id. ¶ 67.
(271) Additional Protocol I, art. 13(1).

(272) See, e.g., Additional Protocol I, art. 12(4) (“Under no circumstances shall medical units be used in an attempt to shield military objectives from attack”); art. 58 (“The Parties to the conflict shall, to the maximum extent feasible: (a) . . . endeavor to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (b) Avoid locating military objectives within or near densely populated areas;  (c) Take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.”).

(273) Additional Protocol I, art. 13(1) (protection to medical vehicles may cease if they are being used outside their humanitarian purpose, and after “a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded”).

(274) Usually, warning shots are fired first in the air or to an object, such as a wall, near the vehicle, and only thereafter to the rear of the vehicle or another part that will not endanger the passengers

(275)   NATO Bombings, Final Report to the ICTY Prosecutor, ¶¶ 80-85 (noting that “[b]y the admission of US Government sources, the Chinese Embassy compound was mistakenly hit,” due to operational mistakes in target location, and declining to assign criminal responsibility either to the aircrew involved in the attack or to senior leaders, in the absence of any unlawful intent).
(276) The incident resembles to a certain extent the one which took place during the NATO bombing campaign in Yugoslavia, where pilots bombed a convoy that they believed consisted of military vehicles, but which later turned out to be tractors carrying Albanian refugees.  Some 75 people were killed and 100 injured, but the NATO Prosecutor declined to proceed with any charges.  The assessment was that “civilians were not deliberately attacked in this incident,” and that “it is difficult for any aircrew operating an aircraft flying … at a substantial height to distinguish between military and civilian vehicles in a convoy.”  Further, while in hindsight “the aircrews could have benefitted from lower altitude scrutiny of the target in an early stage, … neither the aircrew nor their commanders displayed the degree of recklessness in failing to take precautionary measures” which could amount to a violation of applicable law. NATO Bombings, Final Report to the ICTY Prosecutor, ¶¶ 63-70.
(277)Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects as amended on 21 December 2001(hereafter “Convention on Conventional Weapons” or “CCW”), art. 1, available at
http://www.unog.ch/80256EDD006B8954/(httpAssets)/
40BDE99D98467348C12571DE0060141E/$file/
CCW+text.pdf.  Israel is not a party to CCW Protocol III.

(278) The investigation discovered that exploding munitions containing phosphorous were used after 7 January 2009 on two occasions, by ground forces and the Israel Navy, for marking purposes. The investigation of these two exceptions found that, while there was a deviation from the IDF precautionary instruction, in neither incident had there been a breach of international law.

(279) Federation of American Scientists, White Phosphorous Fact Sheet, 9 July 2009 (Sources:  American Chemical Society, CDC, eMedicine, NATO, U.N. Department of Disarmament Affairs, U.S. Army, USGS), available at
http://www.fas.org/programs/ssp/bio/
factsheets/whitephosphorusfactsheet.html. 

Peter Herby, head of the Red Cross mines-arms unit, has likewise confirmed that “[i]n some of the strikes in Gaza it’s pretty clear that phosphorus was used … But it’s not very unusual to use phosphorus to create smoke or illuminate a target.  We have no evidence to suggest it’s being used in any other way.”  Associated Press, IDF white phosphorus use not illegal, The Jerusalem Post, 13 January 2009 (emphasis added), available at

pagename=JPost/JPArticle/ShowFull&cid=1231866575577;
see also
 Human Rights Watch, Q & A on Israel’s Use of White Phosphorus in Gaza, 10 January 2009, available at

q-israel-s-use-white-phosphorus-gaza (similar).

(280) US general defends phosphorus use, BBC News, 30 November 2005 (noting that white phosphorus is a “legitimate tool of the military” and that it “is not a chemical weapon.  It is an incendiary.  And it is well within the law of war to use those weapons as they’re being used, for marking and for screening”), available at
http://news.bbc.co.uk/2/hi/americas/4483690.stm.  In addition, when the United States submitted CCW Protocol III to its Senate for advice and consent in 2008, Department of Defense witnesses testified that use of white phosphorous was permissible under the Protocol.

(281) There appear to have been no documented deaths in Gaza resulting from exposure to white phosphorous itself.  There have been reports of civilians receiving non-lethal burns from white phosphorous, although the number of such cases and the manner in which such burns were received is unclear.  For instance, while statements by Gaza hospital officials express suspicions of white phosphorous burns in patients, they do not specify the number of cases, and acknowledge that physicians did not have the means necessary to distinguish white phosphorus burns from other types of burns. See Sebastian Van As et al., Final Report:  Independent Fact-Finding Mission Into Violations of Human Rights in the Gaza Strip During the Period 27.12.2008 – 18.01.2009, Physicians for Human Rights-Israel, April 2009, at 32.
(282)W. Hays Parks, “Means and Methods of Warfare,” 38 Geo. Wash. Int’l L. Rev. 511, at 1 (2006).

(283)  Physicians for Human Rights v.OC Southern Command, HCJ 8990/02 (27 April 2003), available at
http://www.icrc.org/IHL-NAT.NSF/
46707c419d6bdfa24125673e00508145/
668f8bdcfda7c7a3c12575c3002e2106/
$FILE/HCJ%208990.02.%20PDF.pdf
(English translation)