Briefing on the Gaza Operation: Factual and Legal Aspects
11 Aug 2009
Presented by Israel Foreign Ministry Principal Deputy Legal Adviser Daniel
Since the Gaza Operation finished, quite a number of issues that arose in
the course of the operation have occupied Israel. We've been trying to
grapple with them - we've been trying to figure out whether there was maybe
a way that we could have dealt with any of them better, and we're still in
that process. There are many investigations which are still underway. But we
find ourselves in a situation where we can't necessarily afford the luxury
of waiting until all of those investigations are completed. A lot of reports
are already out there. Some of them, we feel, are not based on full
information and that's the reason why we've engaged in this effort, to try
and share as much information as possible at this stage.
The report contains a lot of factual information, but what I would like to
try and share with you here, primarily, is a little about some of the
dilemmas that arose and in particular, how the rules of international law
fit into a military operation.
So I think that the starting point has to be - where do law and military
I think it's fair to say that there are basically four key moments where
legal advice meets military operations. If we start on the top left, it's
prior to the conflict, then it's pre-operation, it's during an operation,
and it's after the operation.
And if we think for a moment about what happens in each one of those phases,
prior to a conflict we have the whole process of training - IDF training.
Since 2005, with the Law of Armed Conflict, humanitarian training has been
compulsory for all soldiers in the IDF.
We have computer tutorials that have been developed in the IDF which have
been copied or shared by many other militaries now. Thinking about
pre-operation, actually what happens once a conflict is under way, in this
particular conflict we had legal advice both at the headquarters and at the
command level. Legal advisors were involved at every stage in operational
planning, deciding what was appropriate, lawful targets and so on.
Legal advice during a military operation is a tough question. And it's not
just a tough question for Israel. It's a tough question for every military
in the world. What is the appropriate level of legal advice that a military
should have during a military operation? Do you want to send your commanders
into the field with legal advisors perched on their shoulders, and so on?
It's a tough question that we and other militaries grapple with and in this
particular conflict, it's fair to say that there were 24/7 military legal
advisor units operating - legal advisors were involved in the daily
situation meetings, and so on and so forth.
And, finally of course, after a conflict is over, there's the whole process
of investigating what happened. In this report you will find details of over
100 investigations, field investigations that are in the process of being
conducted by the military. In addition, there are five fairly large command
investigations dealing with general issues which arose in the course of the
conflict. And the report also refers to some 13 criminal investigations
which have been opened in relation to allegations of misbehavior by
So that is just a general overview of how legal advice gets into the
military system. But what does legal advice have to say? What are the rules
that apply when you're in a military operation? I think it's fair to say
under the laws of armed conflict, there are four key principles - these are
military necessity, the idea of distinction, the idea of proportionality and
the idea of humanity.
I'll jump ahead and just point out now that I think in this particular
conflict in Gaza, the two most problematic areas were the area of
distinction and the area of proportionality. Number two and number three.
But I'll just say a brief word about each one of those four different
So, the principle of military necessity - what is military necessity? Here's
a quote from Napoleon Bonaparte, who I think said it as well as anybody else
great maxim has always been that any injury done to the enemy is excusable
only insofar as it's absolutely necessary."
What does that actually mean in practice? Basically it means three things.
It means that you are entitled to confront the adversary's ammunition and
weapons; it means that you are entitled to confront their infrastructure,
and it means that you can take measures to protect your own forces.
Just a brief word about each of those. In the report there is obviously a
great deal of information about the threat that Israel faced. On the left
here, you can see a table, showing the number of missiles fired in the years
leading up to the conflict - some 8,000, close to 9,000 in the years between
2003 and 2008; 3,000 in the year prior to the conflict. And even more
troubling than that is the map on the right, which shows the increasing
range of these rockets and mortars. In fact, the final line or the final
range actually doesn't appear on that map. It reaches as far as Ashdod and
Beer Sheva, placing close to a million Israelis within the range of the
The report also gives details of the measures that were taken by Israel both
to try and avoid the conflict, and also to try and protect Israeli civilians
including the expenditures on safety measures in Sderot and other towns.
Confronting terrorist infrastructure, there are many aspects, but primarily,
perhaps, the problem of the tunnels which you can see here, just the number
of tunnels going under the border between Egypt and Gaza, where much of the
weaponry was smuggled through. Here's a picture of just one of those
tunnels; many have electricity, ventilation - some of them have railway
tracks in them and so on.
And, finally the question of force protection. I have placed here a picture
of Gilad Shalit, not just as a reminder that he is over three years in
captivity, incommunicado, but also to remind us that one of the goals that
the Hamas set for themselves, was to try and kidnap more Israeli soldiers,
and that obviously had implications for the operational planning of Israel's
So that's a word about the principle of necessity. As I said before, one of
the key principles, perhaps the most key principle of the Law of Armed
Conflict, is the principle of distinction, which basically says: Let us try
and leave civilians out of this. Let us try and make this a conflict between
combatants, and protect civilians.
And this really has two aspects to it. One of them is when we think about
what is happening on the other side of the equation, when we're thinking
about the adversary's civilians and the adversary's combatants. And here,
the Geneva Protocols say quite clearly that you can only direct your
operations against military objectives. That clearly is something that Hamas
did not try to do. You can see here, for example, official Hamas posters -
look at the one on the left - which is proudly showing pictures of houses
on which Hamas missiles have landed. There's no sense that this was a
mistake. There's no sense that this was a violation, This is what they were
aiming to achieve - actually attacking civilian homes.
But the more problematic aspect of the principle of distinction is not what
happens in relation to the adversary, but actually what happens on your own
side of the equation.
And here there is an obligation for you to try and make a distinction
between your own combatants and your own civilians. Here again, in the
Geneva Conventions, the presence of a protected person - basically a
civilian - cannot be used to render points or areas immune from military
operations, and one of the things that made the operation in Gaza so
complicated was the abuse of this principle by Hamas as their major tactic.
Here, for example, we see firing from civilian areas. We can see rockets
being fired from civilian roof tops, from built up areas, from behind the
And here is a very, very troubling clip. This is a UN school in Gaza, a
boys' school, and what you will see here on this clip, you will actually see
a missile launcher being wheeled out of the school, being launched, and then
wheeled back into the school. And obviously a situation like this does not
just undermine the protection that should be afforded to this school. It
undermines the general principle that we can regard schools as being
protected sites throughout the Gaza Strip.
Other abuses of the principle of distinction: here, for example, is a
satellite map of the Tel Azata part of Gaza. You can see all the houses.
What you can also see, circled in yellow here, are protected sites: schools,
UN facilities and so on. There are some 750 UN facilities in the Gaza
Strip - about 1,800 protected sites altogether. But what makes this picture
so interesting is that also on this map, you can see these little red dots,
Those are dots that have been plotted by a radar system called TPQ, which
marks where missile launches were fired from.
And what is extremely troubling is the correlation that you can see between
protected sites and clusters of red dots. I want to just point out, for
example, that over here, you can see whole forests of missile launchers,
clearly from behind or within protected sites, deliberately to try and
create a situation that is going to create dilemmas - Do we respond? Do we
risk attacking protected facilities?
Here is another area of Jabaliya this time and, again, you can see the
connection between the clusters of red sites and the yellow circled
buildings of the protected sites. Here, for example, you can actually see a
missile launcher in the red circle there and underneath, public buildings, a
kids' football stadium, a medical center and a center for the disabled.
Again, deliberately trying to create these impossible dilemmas.
Other abuses of the principle of distinction - the storage of weapons inside
mosques, the setting up of weapons factories inside civilian homes,
combatants dressing as civilians. That's a Hamas poster showing a Hamas
leader dressed, to all intents and purposes, as a civilian. The recruitment
of children - not just recruiting them, but also having stories like we see
here in Hamas magazines, where kids proudly tell of their involvement
supporting terrorist groups.
Human shields - Before I show you this clip, I'll tell you what you're going
to see, because it's very shocking but it's very short. This is a clip in
which a terrorist, who you are going to see in just a moment, needs to cross
a road, and when he crosses this road, he is going to be exposed. So what he
does is he is actually going to take this kid and use him literally as a
human shield in order to be protected as he crosses the road. So there's the
kid and in just a moment we are going to see a terrorist coming in with a
gun on his back. He grabs the kid, lifts him and carries him in front of
him, and as he crosses the road, and then throws him aside when he gets to
the other side of the road.
Not just using civilians as shields, but particularly in the last week and a
half of the operation, one of the Hamas strategies was in fact to booby trap
entire civilian areas. The plan was to try and to draw in Israeli soldiers
and to blow the civilian homes up on them when they went in. So here is a
map, a work map. It's a large map - the original is about this size - that
was found in Gaza. It's Hamas' plan of a particular civilian area. You can
see very faintly the houses. There, on the left hand side, is a key which
shows where the wires are, the trip wires, the IEDs, the explosive devices
and so on and so forth - the entire area had been turned into one large
booby trap. And of course, you have to bear in mind that these explosives
were actually placed while the civilians were actually living in these
homes. And here on the right, you can see, for example, just one of these
homes which is booby trapped with explosives.
If you introduce this quantity of explosives into civilian areas, then what
you have is what are euphemistically called "work accidents." Work accidents
occur when weapons factories blow themselves up, when people who are making
weapons don't quite do it correctly, and although publicly these are
declared as being Israeli attacks in the Palestinian press, these are
described as work accidents. Here, for example, is a list of work accidents
which just took place in the month of December. There's a more extensive
list in the report. But it's worth pointing out just the statistic down at
the bottom of the page here, in the first five days of the operation in
Gaza, between six and seven percent of the missiles that were fired from the
Gaza Strip into Israel actually never left the Gaza Strip. They actually
landed on the Palestinian population in Gaza.
So, what are you allowed to do in this situation? What is a lawful response?
Well, international law is quite clear that if something is a lawful
military target, it doesn't stop being a lawful military target just because
there are civilians in the vicinity. And you'll realize that that has to be
the case, because if you start saying that you can't attack a military
target because it's hidden behind civilians, what you are really doing is
issuing an open invitation to every terrorist organization in the world to
set up shop inside a school or a hospital or a kindergarten, and no
democratic country can afford to do that.
It does raise complicated questions, which we'll come to in a moment, of
making sure that your attacks are proportionate.
So, what do you do? Well you have a number of tools at your disposal. You
have to try and choose the right weapons. You have to try and choose the
right method of operation and timing and so on. What does that mean in
practice? I'll give you one example. I don't remember if it's referred to in
this report, but it's one that I think is not untypical and I've spent some
time with some of the officers involved.
The case that I'm thinking of is related to a weapons factory that was
located on the ground floor of a four story building. This was a residential
building and it was actually connected to two other residential buildings,
one on each side. And to make matters even more complicated, on the other
side of the road was actually a medical center.
What did the IDF do? The IDF decided to use a single PGM, which is a
precision guided missile. They planned the angle of attack and they put a
delay fuse on the missile so that it would enter, go down three floors of
the building, and it would explode only when it got to the ground floor,
which was the floor of the weapons factory, leaving the building standing
and the neighboring buildings intact.
I saw the photographs of the building before and the photographs of the
building after, still standing with a hole in the roof. The IDF dropped
leaflets, made warning telephone calls and, in this particular case, in
addition, actually fired a non-lethal warning shot on one corner of the
building as an additional message to people to leave the building. And they
timed the attack for the time when they thought that the least people would
be in the area. So those are some of the precautions that the IDF was trying
to take and, again, in the report, there are a lot more details about those
The principle of proportionality - Even though international law says that
when a military target is in a civilian area it remains a lawful military
target, it also says that you have to have regard for the principle of
proportionality. And what the principle of proportionality really says is
that on the one hand, you have to think about the military advantage you're
trying to achieve, and on the other hand, you have to try and think about
the likelihood of injury to civilians. And if the injury to civilians is
going to be excessive in relation to your military advantage, then that
attack becomes disproportionate. That's the principle of international law.
What does that mean in practice? Well a few things about the international
law test of proportionality are important. First of all, it is not a
retroactive test. You don't
look at the damage and try and decide whether something was proportionate.
You go back in time and think of what the options were, what information was
available at that time. It's also measured, not in relation to a specific
rocket or missile, but in relation to the overall objective of the attack.
And at the end of the day, the test is not of a human rights expert. The
test, as described by international law, is the assessment of the reasonable
military commander. So, thinking about what a military commander has to
weigh up in real time - he has to think that if we start at about two
o'clock, he has a responsibility to protect his own civilians. He has a
responsibility to protect his own forces. But he also has a responsibility
to minimize harm to civilians of the other side. He has to think, are there
legal constraints? Am I allowed to use this particular type of weapon in
this particular type of circumstance? Have I cross verified my intelligence?
One of the striking decisions made by the IDF in this conflict was to make
sure that the intelligence relating to targets was cross verified, that it
came from two independent sources - which actually meant that they were
increasing the window of time that the terrorists had to operate. And
finally, do I have any humanitarian commitments? Have I agreed that there is
going to be a humanitarian convoy? Have I agreed that we're going to allow a
humanitarian window at this stage?
So that's a tremendous amount of tough decision making that has to take
place in the heat of battle And if that wasn't hard enough, in the operation
in Gaza, the military also had to deal with the abuse of the principle of
proportionality. The picture on the right hand side of the page here, is of
a Hamas leader, Abu Al-Hattar. And this is after it's been indicated that he
may be targeted by the IDF. And what has Hamas' approach been? To round up
dozens, if not hundreds of civilians from the local population, to send them
up onto the roof of the house to try and change the proportionality
equation. And this is not a one-off exercise - it's actually a deliberate
strategy by the Hamas. It's worth listening to Fathi Hamad, a Hamas leader,
who is talking about this strategy. I'll read the sub titles in case you
can't see them:
The enemies of Allah do not know that the Palestinian people has developed
its methods of death and death seeking. For the Palestinian people, death
has become an industry, at which women excel, and so do all the people
living on this land. The elderly excel at this, and so the mujahideen and
the children. This is why they have formed human shields of the women, the
children, the elderly and the mujahideen in order to challenge the Zionist
bombing machine. It is as if they were saying to the Zionist enemy: "We
desire death as you desire life."
So what do you do in a case of the abuse of the principle of
proportionality? There's no easy answer. As I mentioned before, the IDF
tries to take all sorts of
precautions - early warning systems; dropping hundreds of thousands of
flyers; making some 160,000 phone calls to particular Palestinian houses,
trying to ask people to leave the areas of terrorist activity; preliminary
attacks on the corners of buildings that wouldn't cause fatalities. But if
none of these work, then you have to be prepared to say that we cannot
engage in this attack in this particular situation - the resulting civilian
casualties will be too high. And that's a decision that was made frequently
in the course of the operations.
Here is some remarkable footage that was actually released by the IDF. Here,
for example, and I'll just show you one or two, I won't show you all of
these clips. But here, for example, is a vehicle containing terrorists, and
the pilot has it in his sights and actually fires a guided missile at the
truck. But at the last minute, the truck drives into a number of buildings,
and the pilot doesn't know whether there are civilians in these buildings.
So he doesn't want to take the risk. He diverts the missile away from the
truck and actually blows it up in an empty area or a field - you can see it
blowing up there - where he doesn't kill the terrorists, but at least he
doesn't risk injuring civilians.
Maybe we'll see one more. Here for example is a car, a car with terrorists
in it, traveling down the road. The pilot has it in his sights. He's
actually released the missile - you can see the second cross. But even after
he's released the missile, the vehicle actually now drives into a group of
civilians who are standing in the street and he decides that the
proportionality is no longer justified. He moves the aim back down the
street, to an empty part of the street and blows the missile up in an empty
part of the road, where it's not going to damage the terrorists, but it
won't damage the civilians.
The principle of humanity - Even in the middle of armed conflict, the Law of
Armed Conflict says that you have obligations to the elderly, to the infirm,
to those who are in need of medical treatment and so on. The report gives
fairly extensive details of some of the efforts that Israel made to try and
make sure that there were humanitarian coordinators - 120 officers were
specifically appointed to try and coordinate humanitarian assistance and the
arrangements for evacuation of those who needed medical assistance - both to
medical facilities in Israel and abroad, humanitarian coordination and so on
and so forth. But one of the other things that was very striking in the
operation in Gaza, making these efforts much more difficult, were attempts
by Hamas to abuse these humanitarian efforts - the use of ambulances to
mobilize terrorists, and the use of the humanitarian window as a time to
launch increased rocket attacks and so on and so forth.
So here for example, we can see a couple of photos of attacks, not against
Israelis - these are Hamas attacks directed at crossing points, and crossing
points are the life blood of humanitarian assistance getting into the Gaza
But the terrorist organizations that had an interest in perpetuating
suffering, again and again attacked - whether it was the Erez crossing or
Nahal Oz, which is where most of the fuel gets into the Gaza Strip. Here
again, I won't go through all of them, but this is just a list of terrorist
attacks on Palestinian crossing points in the course of 2008.
The use of hospitals and ambulances to enable terrorist activity. Here, for
example, this is an ambulance - it is actually two ambulances, but you only
see one of
them - being used as getaway vehicles by terrorists. You see the terrorists
carrying the weapons, climbing into an ambulance with the UN and Red Cross
markings, and actually using it as a vehicle for getting away - obviously a
total violation of the principle of keeping humanitarian impartiality and
keeping those out of the cycle of violence.
On the right here, medicine bottles that were brought in for Hamas as
humanitarian aid, being used as explosive devices. On the left, this is
Annas Naim, the young man on the left in the poster - the young man who
appeared as a medic on the Hamas list of fatalities. This is the poster that
was published by Hamas after he was killed, showing that he was a fighter to
all intents and purposes.
Finding a lawful balance: I think the main message of the report that Israel
is publishing is not that we have the right answers to these impossible
dilemmas, and I'm skeptical as to whether any country fighting terrorism has
all the right answers. But I think it's that, by and large, we are asking
and grappling with the right questions. And one of the tools that we have
for grappling with those questions is our Supreme Court - a Supreme Court
which is open not just to every Israeli, but to every Palestinian and every
human rights organization for judicial review of the actions of the military
in real time. The report gives details of some of the petitions to the
Supreme Court that were heard in the midst of the fighting, regarding
humanitarian arrangements, access, and so on and so forth - decisions that
talk not just about a military commander's obligation to avoid harm but his
positive obligations and so on and so forth.
I'll share with you that one of the dilemmas, as international lawyers
within the governmental system, is that frequently, when we try to be
advocates of international law within the system, we are undermined by
presentations of international law by international organizations, which are
simplistic, unworkable and sometimes out and out wrong.
Here, for example, the Human Rights Council in Geneva has appointed a
fact-finding mission to investigate operations in Gaza. The mandate of the
mission is to investigate all violations of international humanitarian human
rights law and international humanitarian law by the occupying power,
Israel, against the Palestinian people, throughout occupied Palestinian
territory. Not a reference to a single attack against Israel, not a
reference to the situation of the residents of Sderot or any other Israeli
towns or Israel's right to self-defense.
Here is a quote from a letter to the Sunday Times by a group of academics,
among them one of the members, bizarrely enough, of this fact-finding
mission, who wrote that "the rocket attacks against Israel do not entitle
Israel to rely on self-defense. Israel's actions amount to aggression and
not self-defense." It's very difficult to engage in a practicable workable
dialogue about the appropriate ways to respond to threats, with people for
whom this is their starting point.
And just as a final comment, I will leave the final word on this
presentation to our Supreme Court. Chief Justice Barak said in a number of
cases, but I think it applies to this operation as well - "Democracies fight
with one hand tied behind their back, but that is why they have the upper
hand." Thank you
A: I'm not aware of any specific instances. I haven't studied it. I know the
UNRWA spokespeople themselves have said that they assume that there are
Hamas members on UNRWA's payroll and if they say that, I have no reason to
I followed very closely one of the major investigations that Israel opened
up, which was into the question of operations that had an impact on UN
facilities on the Gaza Strip. We're talking about extremely extensive
operations, and one of the sensitive fact-finding operations that was
engaged in by Israel related to seven allegations of damage to seven UN
facilities in the course of the operation. If you think about it, it's quite
remarkable, in view of the 750 UN facilities throughout the Gaza Strip.
Beyond that, I'm not sure that I'm in a position to make any other comments
about the involvement. I personally haven't come across any information that
suggests deliberate or direct involvement of UNWRA, certainly on an official
level, in military or supporting military activity. I think it is fair to
say that some of the statements that were made by UN officials in the course
of the operation were not strictly accurate, were misleading to some degree,
particularly in relation to casualties that were caused in the course of the
operations, where they took place and so on. But beyond that, I can't point
to anything else.
A: The answer is, there is information that indicates that. You'll find it
in this report. Particularly striking is Shifa Hospital, which is a major
hospital in Gaza, which continued to function as a hospital at the same time
that closed underground wings were used for the purposes of Hamas, including
? I think you're correct ? for the purposes of interrogation. I don't have
the details of that, but you'll find it in the report
A: I'm going to make a comment which is almost a personal comment. I'm not
sure it's a solid analytical comment, although I think it's got truth to it.
I think what is quite clear, is that Hamas, in its operational strategy, has
learned lessons from the Lebanese conflict, and I think if we go back to the
Lebanese conflict, two, three years ago now, one of the things that
Hizbullah found was that Israel had very effective responses to long and
medium range missiles. I think, if I remember correctly, in the course of
the Lebanese conflict, there wasn't a single long range missile launcher
that fired more than once before it was taken out by the Israeli forces. But
what they also learned is that short range missiles, which are on mobile
launchers that can be moved in and out of built-up areas and undergrowth and
so on, represent a very difficult challenge, particularly when coupled by a
cynical public relations abuse of injury to the civilian population. And the
reason why I say I'm not sure this is valid, because I don't have the
intelligence to back it up, but just from following those two operations, it
makes sense to me that a fair degree of the Hamas strategy, fighting from
the Gaza Strip, was predicated on the difficulties that they saw had arisen
for Israel from seeing short range missiles used in the Lebanese conflict.
A: Again, I'm not entirely sure that I'm familiar with the instances that
you're talking about. I'm certainly not aware of the embedding of Israeli
soldiers, as a matter of policy, within the civilian populations. It makes
sense that there are soldiers who are sometimes in civilian areas, either
for military purposes, or since we have an army that is largely based on
reservists, they have to get from place to place. But the notion that
Israeli military forces are based within civilian areas, I'm not familiar
with it, and if that's a strategy, and if you have evidence of it, you
should take it up with the army. It's not something I'm familiar with.
You're absolutely right. The principles of international law are clear.
There is an obligation to make efforts to separate combatants from the
A: As far as the safe havens is concerned, I'll be honest, I'm not sure that
it stands up to scrutiny. You are absolutely right. We are talking about
extremely dense population and it's quite clear that you're talking about an
adversary that is trying to complicate the situation. But Israel and the UN
and other international forces had daily updates, had common maps, and the
sharing of the safe places, and with all the complaints that were received
in the UN, with the exception of one questionable incident which is somewhat
sensitive and it's hard for me to go into full detail, I haven't heard of an
incident in which it's claimed that there was an attack on a place that was
designated as a safe haven and that people that were in a place that had
been designated and noted as a safe haven, were actually injured. I mean,
the fact that the UN raised complaints in relation to some damage caused to
seven UN facilities, out of 750 UN facilities in the Gaza Strip and over
1,800 sensitive facilities altogether, I think gives some sort of indication
of the remarkable degree of care that was taken by the IDF in
extraordinarily difficult situations, to try and protect these environments.
As far as the medical treatment is concerned, I really urge you to read the
sections in the report on that, which show what to my mind are quite heroic
efforts that were made in very difficult situations, to try and enable
medical access in close to real time, including coming into Israel for
medical treatment, including going abroad, and which also reference
situations in which Hamas actually stopped the humanitarian convoys from
leaving the Gaza Strip.
I think you're right to focus on the use of phosphorus as one of the things
that raises questions in the course of the conflict. It's one of the areas
which was the subject of a fairly extensive command investigation, one of
the five major areas. What's come out of that investigation so far, is
basically that there were two types of phosphorus in mechanisms, or weapons,
using phosphorus in the course of the conflict. The first were missiles that
we used for marking and signaling, which we used only in rare cases and only
in open areas and which, by and large, don't seem to have created
operational or legal or other problems. But the aspect that has created
problems and which I think you focus on rightly, are the use of smoke screen
munitions, and these are a standard form of smoke screen. They're used by
armies all over the world. They don't actually contain phosphorous, they
contain felt wedges which are soaked in phosphorous, which actually create
the smoke screen. For fighting within urban centers, they are very important
because they actually enable the forces to manage without bringing in
additional forces and without creating firefights with the Hamas combatants
themselves. But having said that, in the course of this operation it did
turn out that these can have an incendiary effect, that some of these wedges
can land and set places on fire, and it's something that, in the past,
Israel has used these same smoke screens over their own forces. But it
raises complicated questions and that's one of the issues that the IDF is
grappling with, whether there may be a more effective way of trying to deal
with these sorts of challenges.
Again, I refer you to the report. There are a number of allegations that
have been made. Some, already, it turns out, were based on hearsay and were
not necessarily factually based. On the other hand, when the report talks
about specific cases, specific allegations, which are under investigation,
those are obviously amongst the most important on the face of it. If an
allegation like that is true, you're talking about a clearly fundamental
violation of very crucial principles of international humanitarian law. As I
mentioned before, there are a number of investigations that have already
proceeded to the level of a criminal investigation. And it's not out of the
question that there will be more.
A: First of all, I think that's a great question. Thank you. If we could
have, we would very much have liked to wait until we had all the information
in, and it makes sense for us to try and conduct a full investigation and
then to share considered results with the international community.
Unfortunately, we find ourselves in a situation where the world is not
standing still. There are other organizations, there are NGOs that are not
waiting for the results of the investigations. They're making - at least a
number of them - reports, assertions, conclusions, which we consider to be
not particularly well founded. And that's the reason why, on balance, it
seems to us that even though some of the information is provisional, some of
the information is subject to further investigations, it's important for us
to try and share the information that we have - not to try and end the issue
but try and make sure that we've got a basis for a more informed debate.
A: Sure. According to the report, at the moment, in relation specifically to
this operation, there are already 13 criminal investigations that have been
opened and are proceeding, and in view of the large number of some 100
investigations which are taking place, it's certainly possible that there
will be others.
A: I can't comment on the document. I'm not familiar with the document
you're talking about. I can, first of all, refer you to the report, which
has a fairly thorough analysis of the basis for coming to conclusions about
whether somebody is cross-referencing information from Hamas, obituary
notices that are published by Hamas, praising somebody as being a martyr,
and so on and so forth.
On the legal question that you raised, you're absolutely right. If somebody
is a civilian, then they are protected. It's complicated when you talk about
an organization which deliberately tries to blur the distinction between
civilians and non-civilians, but the presumption that some of them are
civilians has to be overridden by the fact that they are directly
participating in the hostilities. When somebody is directly participating in
the hostilities, then whether they're wearing a uniform or not, they become
a lawful target. That's when they lose the protection that's afforded to
them under the Geneva Convention as a protected person.
A: They have to be directly participating in the hostilities. That's a
complicated question. There are major debates in the international community
about that, but you can actually have a look. One of the places you may want
to look at are some of the decisions of Israel's Supreme Court, and in
particular the decision of the Supreme Court where it grappled with the
question of whether you can target a terrorist, try to set out parameters
for deciding what would be the test. It's interesting. It's a decision which
set aside, which didn't accept the argument that there is a status of
unlawful combat. It's something that the United States has tried to argue.
But it did say that we have to come up with guidelines for what satisfies
the requirement of directly participating in hostilities, and you will find
some of the guidance there.
OK, I think we're going to wrap up here, Thank you very much.