II. INTRODUCTION

    15 Democratic States today frequently face attacks from non-State actors seeking to terrorise civilian populations.  For eight years, Hamas, a terrorist organisation avowedly dedicated to the destruction of Israel, has launched deliberate attacks on Israeli civilians, from suicide bombings to incessant mortar and rocket attacks.  Since October 2000, Hamas and other terrorist organisations unleashed more than 12,000 rockets and mortar rounds from the Gaza Strip at towns in Southern Israel.  Even though Israel withdrew from the Gaza Strip in August 2005, the attacks continued.  Even though Israel made repeated diplomatic efforts, including appeals to the U.N. Security Council, to end the violence, the attacks continued.  The death, injuries and — as Hamas intended — terror among the civilian population, including children, were intolerable, particularly as Hamas increased the range and destructiveness of its attacks.  16 Under international law, Israel was entitled to take military action to stop the thousands of deliberate rocket and mortar attacks that had killed or wounded Israeli civilians and that threatened and terrorised hundreds of thousands more.  Israel is a sovereign State, with a moral and legal obligation, and an inherent right under international law, to protect its citizens from terrorism.  No nation is required to submit to terrorist attacks.  Every nation has a right and an obligation to stop them.  After exhausting other options, that is what Israel sought to do in its operation in Gaza, between 27 December 2008 and 17 January 2009 (the “Gaza Operation,” also known as “Operation Cast Lead”) — to eliminate the weapons and the infrastructure that Hamas had used to launch attacks against Israeli civilians on thousands of occasions, and to prevent those attacks from recurring.  17 For a State, like Israel, that recognises its obligation to minimise harm to civilians, responding to and preventing such attacks poses operational, legal and moral challenges.  Hamas amplified those challenges, by using the civilian population in Gaza to shield its military operations during Israel’s recent intervention.  Confronted with those tactics, Israel took extraordinary steps to avoid harming civilians in its Gaza Operation while protecting its own population from continued deliberate attacks and its soldiers from hostile fire.  18 Nonetheless, in many cases, the results of the Gaza Operation were unfortunate.  Civilians were killed or injured, and private property as well as Gaza’s public infrastructure were damaged.  Israel in no way seeks to dismiss those tragedies or to devalue the human loss incurred.  As then-Prime Minister Olmert said to the citizens of Gaza, “Your suffering is terrible.  Your cries of pain touch each of our hearts.  On behalf of the Government of Israel, I wish to convey my regret for the harming of uninvolved civilians, for the pain we caused them, for the suffering they and their families suffered as a result of the intolerable situation created by Hamas.”(1)  But as tragic as those casualties were, the mere fact that they occurred does not in and of itself mean that Israel did not have a right — indeed a duty — to protect its citizens against the incessant terror emanating from Gaza, or that in its various operations it violated applicable international law norms while doing so, as some have been quick to accuse. 19 Compliance with applicable international law norms is a cornerstone in the IDF rules and policies.  In the aftermath of the Gaza Operation, IDF launched multiple investigations into the allegations made by various groups that the IDF had violated international law.  Many of the IDF investigations are continuing, and even those for which the first stage — an IDF field review — is now complete, will be subject to further independent review, first by the Military Advocate General, and thereafter is subject to the review of the Attorney General of Israel as part of the civilian legal system.  In addition, they ultimately may be subject to review by the Supreme Court, if such a petition is filed.  Israel is committed to fully and fairly investigating all allegations of misconduct, and to taking appropriate action, including sanctioning IDF commanders or soldiers found to have committed offences.  This is no hollow promise.  Numerous outside observers have confirmed the rigor of Israel’s system for investigating such allegations including, ultimately, judicial review of the conclusions.  Indeed, the international respect for the Israeli system was apparent just a few weeks ago when the National Court of Spain rejected Spanish jurisdiction over a case involving previous incidents in Gaza, on the basis of a finding that Israel was investigating the incidents itself and that Israel’s system of appellate review was independent and impartial. 20 Some in the international community nonetheless appear to have reached conclusions without waiting for the evidence — to have inferred from the fact of civilian casualties and the damage to civilian property that Israel violated international law.  Reports by non-governmental organisations and others have levelled numerous charges about specific incidents in the Gaza Operation.  Israel has not yet fully reviewed those claims, although processes are underway to do that.  But because of the rush to judgment and the myriad accusations of legal violations, generally without pause to consider what International Humanitarian Law actually requires, it is important to release this Paper now, to place the Gaza Operation into its proper legal and factual context and to answer propaganda and prejudice with facts and law.  21 It should be noted that presenting a full and accurate picture of the conflict is a complex and challenging task.  Hamas’ modus operandi means that damage to civilian structures in Gaza remains apparent for all to see, while the weapons and terrorists they concealed there are long gone.  Moreover, making public the sensitive information needed to present a full picture — including the intelligence on which operational decisions were made and the techniques used to counter Hamas’ tactics — is fraught with security concerns.  The conflict with Hamas is not over.  It remains a terrorist organisation and is in control of the Gaza Strip.  And it still seeks the destruction of Israel.  For Israel to reveal its own strategies and capabilities, or how Hamas’ weapons succeeded or failed, would enable Hamas further to refine its tactics and threaten the lives of Israeli soldiers and civilians. 22 Nonetheless, this Paper has assembled and analysed a substantial record on a number of specific incidents subject to the greatest public criticism.  That record makes clear that the principal charges regarding the Gaza Operation rest on incomplete and often inaccurate information, that they do not take into account the devastating impact of Hamas’ abuses on the population of Gaza, and that they do not reflect the applicable principles of the Law of Armed Conflict.  Notwithstanding the tragic civilian casualties in Gaza, the evidence analysed thus far demonstrates that Israel took extensive measures to comply with its obligations under international law. 23 More specifically, Hamas chose deliberately and systematically to exploit Palestinian civilians as shields for military targets in the IDF’s Gaza Operation.  It did not provide any protection for the civilian population.  Instead, it exposed the Palestinian civilian population of Gaza to additional harm.  With the intent of exploiting the civilian population, Hamas stored explosives and weapons in and around schools, mosques, U.N. facilities and homes, even though other storage sites were available.  It used medical facilities and ambulances for military purposes, exploiting the protected status of medical sites and restricting effective care for civilians.  It repeatedly fired mortars and other weapons from locations adjacent to U.N. schools and medical facilities, and from the roofs of residential apartment buildings.  It used individual civilians as human shields to protect Hamas terrorists.  And it turned civilian neighbourhoods into battlefields, by digging warrens of tunnels lined with explosives and booby-trapping residential buildings in order to cause their collapse at the outset of any IDF incursion.  In short, Hamas made the likelihood of harm to the citizens and homes of Gaza the centrepiece of its defensive strategy, to inhibit Israeli attacks and to score propaganda coups and vilify Israel when Israel tried to attack a legitimate military objective and unintended civilian casualties resulted. 24 Hamas’ tactics, however, could not legally prevent Israel from defending its own population, nor bar the IDF from protecting its soldiers under fire.  Israel’s obligations under International Humanitarian Law were, inter alia, to direct attacks against combatants and military objects, to take precautions that were feasible and that would still allow the IDF to achieve its legitimate military objectives, and not to carry out attacks which were likely to cause collateral damage excessive in relation to the military advantage anticipated.  Israel fulfilled this obligation.  The IDF chose its targets against Hamas terrorists, materiel, and facilities in accordance with international law and as carefully as possible despite a rapidly unfolding situation.  The Israeli armed forces dropped leaflets warning occupants to stay away from Hamas strongholds and leave buildings that Hamas was using to launch attacks.  It attempted to contact occupants by telephone, to warn of impending attacks on particular buildings.  It fired warning shots that hit the roofs of structures before attacking them.  It checked and double-checked the coordinates of weapons firing on IDF positions.  And it attempted to use the most precise weapons available, applying no more force than necessary to achieve its legitimate military objectives.  Israel’s use of shells containing white phosphorous as a smoke obscurant, for example, was consistent with — and not prohibited by — applicable rules of international law and permitted the IDF to avoid the use of high explosives and munitions that would have otherwise been necessary to protect Israeli forces. 25 These IDF’s mode of operation reflected the extensive training of IDF soldiers to respect the obligations imposed under international law and to adhere to the IDF Code of Ethics.  Further, the conduct of the IDF in the Gaza Operation evidenced the longstanding efforts in the IDF to reinforce awareness of these obligations among commanders and soldiers, to investigate alleged infringements, and to punish violations.  The IDF’s procedures are very similar to those of other democracies. 26 Certainty and precision, however, are elusive in military conflicts, and, in the heat of battle, commanders must make agonising, complex and hazardous decisions affecting the lives of their soldiers, the achievement of their military mission and the safety of civilians.  Experience — including the NATO bombings of the former Yugoslavia and operations in Afghanistan and Iraq by the United States, the United Kingdom and others — has shown that even the most sophisticated systems and the most rigorous training cannot prevent all civilian casualties and damage to public and private property.  Hamas’ cynical choice of tactics — including the unlawful strategy of deliberately shielding their operatives and munitions in civilian buildings and protected sites — made difficult, complex and hazardous battlefield decisions by IDF even more difficult, more complex, and more hazardous.  While Hamas has inflated the number of casualties to inflame world opinion, Israel is nevertheless acutely aware that many innocent Palestinians were killed or injured.  The fact that civilian casualties were the inevitable result of Hamas’ criminal mode of operations, however, does not diminish Israel’s deep sadness regarding each and every one of them.  Had it been possible to protect the civilian population of Israel from Hamas’ terrorist attacks without civilian casualties in Gaza, Israel would have done so.  

FOOTNOTES  

(1)A speech made by the then-Prime Minister, Ehud Olmert on 17 January 2009 following the Cabinet meeting that day, during which the Cabinet decided to enact an Israeli ceasefire.