Tag Archives: Israel Defense Forces

Accountability for war crimes? ICC

When and how will Israel be held accountable for war crimes committed during its 51-day Operation Protective Edge in 2014?  The operation killed 2,251 Palestinians, the vast majority of whom were civilians, including 299 women and 551 children. The operation also caused massive destruction to 18,000 homes and other civilian property, including hospitals and vital infrastructure.

Most of the destruction and damage has not been repaired in the past three years. Neither has any serious investigation been conducted.

Two legal NGOs in Israel — Al Mezan Center for Human Rights and Adalah — have been absolute bull dogs, pushing the Israeli authorities to comply with their responsibilities under International Humanitarian Law (IHL) and International Human Rights Law (IHRL). For the past three years, they have submitted petitions, complaints, claims and every manner of documentation to press for justice for the victims of Operation Protective Edge. To no avail.

IHL and IHRL require Israel to investigate allegations of suspected violations committed during Operation Protective Edge, with independence, impartiality, effectiveness, promptness and transparency and to prosecute those allegedly responsible.

But as with its inquiries into past military operations, Israel has delayed, denied, deflected and dismissed every attempt by the United Nations and others to come clean with its actions in Operation Protective Edge.

That hasn’t stopped Israeli soldiers from talking about their experience in Operation Protective Edge.

On August 28, 2017, Al-Mezan and Adalah published their 9-page report documenting their attempts to hold Israel accountable — Gaza 3 Years On: Impunity over accountability Israel’s unwillingness to investigate violations of international law
in the Gaza Strip. No surprises here.

The cases concerned severe events that resulted in the killing and serious injury of Palestinian civilians, including women and children, and the massive destruction of civilian objects. The evidence in these cases suggested that the attacks were carried out in violation of the principles of distinction and proportionality, which could amount to grave breaches of IHL. These cases mostly concerned incidents of:
 Direct attacks on homes causing many civilian deaths and injuries;
 Direct attacks on children (e.g. the four Bakr children playing on the beach and the Shuheibar children feeding pigeons on a house rooftop);
 Direct attacks on five UNRWA schools that were sheltering civilians;
 The bombing of mosques, hospitals and a shelter for people with severe disabilities;
 Attacks on civilian infrastructure and the municipality workers fixing them.

After Operation Protective Edge, Israel cynically created the Fact-Finding Assessment Mechanism (FFAM) to improve its investigative abilities but after three years, 46.4% of the complaints filed by Adalah and Al Mezan were referred to the FFAM for examination and then closed, without opening a criminal investigation or ordering further action against those involved. 43% of the complaints remain under examination by the FFAM or received no response.

The Military Advocate General’s responses to such cases:
 Secret evidence: The materials collected by the FFAM and other intelligence materials cannot be revealed because they are classified;
 Military necessity: Certain incidents in question were undertaken based on military necessity (these arguments were written vaguely and did not include any supporting evidence);
 No non-military witnesses: The FFAM did not find any need or use in taking testimonies from non-military witnesses.

This whole exercise may seem pointless because when has Israel ever been held accountable for its violations of international law?

This time things might be different.

Ms Fatou Bensouda

Ms Fatou Bensouda – Prosecutor

The Office of the Prosecutor for the International Criminal Court (ICC) has launched a preliminary investigation. (pp. 25-32) But the ICC can’t assume jurisdiction in this case if the State of Israel has an effective mechanism for investigating and prosecuting these claims. In November 2016, the Prosecutor said she would “assess information on potentially relevant national proceedings, as necessary and appropriate.”

That’s why this report from Al-Mezan and Adalah is so very important. It clearly shows that Israel is incapable and unwilling to investigate and hold itself accountable. If the Prosecutor agrees, she can recommend that the ICC take the case.

Israel needs to be held accountable, sooner rather than later. This report provides the ammunition to open the courthouse doors. Bravo Al-Mezan and Adalah!

The case of the Abu Dahrouj family provides another illustration of Israel’s unwillingness to investigate. On the night of 22 August 2014, an Israeli warplane fired two missiles at a home belonging to the Abu Dahrouj family in central Gaza. The Israeli missile strike killed five members of the Abu Dahrouj family, including two children, and wounded multiple civilians and caused extensive damage to neighboring homes. Although [Israel] acknowledged that the missile attack was carried out directly on a civilian home and did not target any combatant or military object, no investigation was opened and the case was closed without any action against those involved.


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“Why can’t the Palestinian leaders build a state like the Zionists did after the Holocaust?”

“Why aren’t the Palestinian leaders building a country like my parents, survivors of the Holocaust and millions like them, did with Israel, instead of building tunnels, shooting missiles and subjecting their people to untold horrors?”

I gasped when I read this question sent to me by a well-educated, university professor in Israel. It was a serious question, deserving a serious response.

Where to begin?

To dissuade my friend of any notion that Palestinians might be incapable of building a country, I’ll remind him of the cities, industry, agriculture, schools and civic life that flourished in Palestine before my friend’s parents and other Zionists arrived. Please watch this 10 minute video.

When I returned from Gaza two years ago, I wrote my layman’s version of the history of Palestine here and here. Israel’s 67 years of dispossession, ethnic cleansing, and occupation of Palestine — as well as current events, including the Palestinian resistance and Israel’s successive military operations in the West Bank and Gaza — can only be understood in the context of the Nakba. I believe my Israeli friend’s question is sincere because either he doesn’t know about the Nakba (past and present) نكبة or he has decided to ignore and minimize the ongoing impacts of the Nakba.

I credit Ilan Pappe and Noam Chomsky for opening my eyes about the Nakba.

In the late 1980s, a group of Israeli historians, including Ilan Pappe and Benny Morris, began to challenge the commonly accepted version of Israeli history based on newly declassified Israeli government documents. Morris called them the New Historians. They went head-to-head with the traditional historians who cast Israel as the peace-seeking victim in a hostile Arab world, the David-and-Goliath narrative. The New Historians shared a more nuanced history of the exodus of the Palestinians and the reasons for the persistent political deadlock with the Arab states in the region.

Professor Ilan Pappe’s book “Ethnic Cleansing” was my education about the Nakba. I hope my friend will read it. In this video, Pappe describes in great detail about the Zionists who committed the Nakba crimes. He urges us to know the names of the perpetrators, the victims, the places and events of the Nakba. Pappe also speaks about the “conspiracy of silence” by the international community in 1948. Please watch.

So . . . . . why can’t the Palestinian leaders do what the Zionists have done (are still doing) in creating the State of Israel?

  • If my friend’s parents and other Zionists had decided to live peacefully side-by-side with the indigenous population when they arrived in Palestine, as Jews, Christians and Muslims had lived for many years, we would certainly be watching very different events unfold in the Middle East today.  The footage in this short clip shows a time when Palestinians of all faiths lived and worked side by side in harmony.
  • If the Zionists believed in a democracy that values plurality rather than an apartheid regime that values Jews over non-Jews, we would certainly be watching very different events unfold in the Middle East today. Saree Makdisi explains apartheid very well here and in his book “Palestine Inside Out: An Everyday Occupation.”

“Apartheid” isn’t just a term of insult; it’s a word with a very specific legal meaning, as defined by the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the U.N. General Assembly in 1973 and ratified by most United Nations member states (Israel and the United States are exceptions, to their shame).

apartheid wall

  • If Israel had not waged three military campaigns in Gaza over the past six years, Operation Cast Lead (2008-2009), Operation Pillar of Defense (2012) which I witnessed first hand from the ground in Gaza, and the most recent Operation Protective Edge (2014), and if Israel lifted the multi-year siege and blockade of Gaza, and if Israel allowed Palestinians in Gaza to travel freely to pursue educational opportunities, visit family, accept jobs, seek medical attention, etc., — if none of these inhumane actions had occurred and were still occurring — we certainly would be witnessing a vibrant economy in Gaza with the next generation of Palestinians living in hope, not despair. Instead, the U.N. is predicting that Gaza will be uninhabitable by 2020. Some of my blog posts from Operation Pillar of Defense are here, here and here.

I can hear your retort now, my friend.  It sounds something like this.  (I hope you are not offended, but I’ve heard the same words spoken seriously by many, many Jews.)


So long as the Zionists maintain the brutal occupation and dehumanization of the Palestinians, as they have for decades, resistance will continue.  Resistance in the form of political resistance at the United Nations, resistance at the International Criminal Court, cultural resistance such as teaching the next generation the Palestinian traditions, economic resistance, non-violent resistance in Budrus, resistance with the pen, and violent resistance.

I’ll conclude with Noura Erakat’s well-reasoned explanation of why Israel’s occupation is illegal. As an attorney yourself, I hope you will give Ms. Erakat the time and respect she deserves by reading her paper.

I appreciate your question which initiated this blog post, and I hope we will continue this discussion. Even more, I hope the occupation and dispossession of Palestinians from their land, which your parents and other Zionists started so many years ago, will come to an end very soon.


Filed under Gaza, Hamas, IDF, Israel, Israel Defense Forces, Nakba, nonviolent resistance, Occupation, Peaceful, People, Politics, Settlers, United Nations, US Policy, Video

Day #46 – Aug. 21, 2014 – Remembering

Shujaya 7

An Israeli isn’t too happy with my blog posts, especially the posts about last year’s assault on Gaza.  (I’m not sure “war” is the proper term because it connotes greater parity between two military forces, which is certainly not the case between Israel and Palestine.)

He believes I’m inciting hatred (doesn’t know how to spell “incite”).

Not content that the war of last year, in fact it’s over a year since the last bomb was dropped or the last rocket fired and with much to write she decides to run a day by day dairy of last years war. Why? What does she hope to achieve by this?

So I thought I would answer him.  Explain what I hope to achieve.

My daily postings about Israel’s 51-day assault on the Gaza Strip last summer are meant to remind us (anyone reading) of the horrific events of last year, to educate people about some of the details of the assault, and to stand in solidarity with my friends and every Palestinian in Gaza who endured the unthinkable last summer. You are not alone!

My Israeli critic writes that the war is over. It would be better to write about “positive events” such as the Palestinian/Israeli orchestra.

The war is over, for the time being lady, please start reporting on positivity and not your reports that are so full hatred. Thank you. Maurice

That is an absurd statement.

The war is not over for the Palestinians in the Gaza Strip.


Gaza is Hell: Desolation and destiny in a land in limbo – Alice Su, The Atlantic, May 2, 2015

BEIT HANOUN, Gaza Strip—Eight months after last summer’s war between Israel and Palestinian militant groups, Gaza remains in ruins. Drive five minutes into the territory from the crossing point in southwestern Israel and you reach Beit Hanoun, one of the areas hit most severely by land and air during the conflict. Bright blue sky spreads over buildings with big bites taken out of them. Half-eaten bedrooms and kitchens yawn open to reveal tangled wires, broken rock, and household goods: a slipper, a pack of sanitary pads, a ripped-up schoolbook. People peek over mounds of rubble from tents behind their former homes, like aliens come to settle an abandoned planet.

Suicide rates on rise in Gaza – Mohammed Othman in Al Monitor.

Awadallah expects the number of suicide cases to increase in the near future due to the deteriorating situation in Gaza. “There is no glimpse of hope for the Israeli siege to end or for the situation to improve. In the past, we used to say that Hamas’ employees in Gaza were not receiving their salaries; now the Palestinian Authority’s employees no longer receive their salaries. The situation is going downhill and the suicide attempts are bound to increase,” he said.

Cold Misery: Gaza is sinking amid hostility from Israel, Egypt and its Palestinian brethren – The Economist, Jan. 17, 2015.

In recent months Israel has arrested about 20 boys trying to clamber across the border. Real prison, says Walid’s father, might be better than life in the open jail of Gaza. And if shot? Well, he laughs, a quick death is better than the slow one on offer.

Shujaya 11

These are just three of many, many stories coming from Gaza today. This past May, former President Carter visited Israel and Palestine, noting that the conditions in Gaza are deplorable.

So my Israeli critic wants the world to forget, to turn a blind eye away from the disaster in Gaza. Not a natural disaster. Not an unexpected disaster. What’s happening to the Palestinians in the Gaza Strip today — right now — is a human-designed and engineered disaster. The responsibility lies squarely at the feet of the state of Israel, of the Israeli leaders, the IDF, the Israeli public, and people like Maurice who prefer to bury their heads in the sand.

That is truly disgusting!

Shujaya 6

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Day #38 – August 13, 2014 – Leading horses to water


On my ride to DC this morning, I took my new book about the Israeli assault on Gaza last summer — “Gaza Unsilenced.”  Check out the Table of Contents here.

Laila El-Haddad

Laila El-Haddad, Editor

Refaat Alareer, Editor (2012)

Lora with Refaat Alareer, Editor (2012)

The Editors write: “How do you provide an accurate and humanistic — a real narration — of the Palestinian story that is Gaza?”

In Gaza Unsilenced, we attempt to do this. We set out to compile a compelling collection of some of the best writing, photography, tweets, art, and poems from that harrowing time and the year that followed, to depict as truthfully and inclusively as possible what was done to Gaza, what the impact has been on both the people and the land, and how they are coping under a still existent siege.


As Palestinians from Gaza who were watching the horror unfold from abroad, we were driven by a sense of urgency, despair, and obligation to curate ad edit this book, to be a conduit for voices writing from and about Gaza, as a means for changing the narrative and thereby changing public opinions, which we hope can help push the long-standing U.S. policy of blind alliance with Israel in a different direction, and ultimately let Gaza live.

I’ve met both editors — Laila and Refaat — personally, and you will too when you pick up their book. They introduce themselves in a very personal way. I won’t share the details, you will find them in the book’s Introduction, but my heart goes out to both Laila and Refaat, and to the thousands of Palestinians impacted by Israel’s brutal occupation, seige and war crimes.

By some estimates, Israel’s use of firepower on Gaza by land, sea, and air during Operation “Protective Edge” was equivalent to the atomic bomb used in Hiroshima. Concretely, some 23,400 tank shells, 20,4000 artillery shells, and 2.9 million bullets, or “almost two bullets for ever man, woman, and child in Gaza.”

I’ve decided this is a book my members of Congress must read. I’m ordering copies for Representative Michelle Lujan-Grisham, Senator Tom Udall and Senator Martin Heinrich.  I’m also going to send copies to President Obama, former President Carter, and candidate Bernie Sanders.  I can lead these horses to water, but can’t force them to drink.  Their time will be well-spent reading Gaza Unsilenced.  You can order your copy here.

 By now, it should be clear that this story is not simply the story of a 51-day attack. Nor is it one about 2,200 people killed during the attack. It is not even a story of an Orwellian world where war is peace and victims are villains. It’s a story of what happens when, despite the ability to do so, powerful nations choose to remain silent or, worse, are complicit through financing the crimes being committed in the name of their taxpayers.


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Day #26 – August 1, 2014 – Black Friday in Rafah

There were many atrocities committed in the Gaza Strip during last summer’s military operation, but if one stands out above all others, it must be Black Friday, August 1, 2014. The U.N. Independent Commission charged with investigating Operation Protective Edge spoke with 22 witnesses about these events, among them victims, medical personnel and journalists. It also studied submissions, video and satellite imagery and public reports from relevant stakeholders. The following description of the events of Black Friday are from the Commission’s Findings.



350.        In response to the killing of two IDF soldiers and the capture of Lt. Hadar Goldin, the Reconnaissance Unit of the Givati Brigade launched a major military operation on the town of Rafah in the morning of 1 August, or “Black Friday” as it was dubbed in Gaza. When the operation started, Israeli forces acted on the basis of the assumption that Lt. Goldin might still be alive. He was proclaimed dead several hours later, following the discovery of his blood-stained effects. There are conflicting reports about whether the capture of the Lt. Goldin occurred before or after a ceasefire that was due to come into effect. According to official Israeli sources, hostilities resumed “following a ceasefire violation by Hamas and the attempted kidnapping of an IDF officer.”

352.        During the operation, the IDF closed off areas of Rafah to block movement in and out, presumably to prevent the captors from leaving the area with the captive soldier. Residents returning home that morning – following the announcement of a ceasefire – found themselves trapped with no access to safer sanctuaries, as Rafah was basically turned into a closed military zone. According to media accounts, the IDF fired over 1000 shells against Rafah within three hours and dropped at least 40 bombs. Tanks and bulldozers demolished dozens of homes.  Inhabitants came under intense attacks in their homes and in the streets. Witnesses reported to the commission that dozens of homes were destroyed by IDF bulldozers. Ambulances and private vehicles trying to evacuate civilians from the fighting were also hit. As a result of the operation, virtually every person or building in Rafah became a potential military target. Families gave accounts of dividing their children into separate groups before fleeing their homes, in the hope that only one group might be fired on and the others would survive.

353.        “Before I left, I called my neighbour and agreed with her to  divide into two groups, so that, if one group were targeted, the others would survive. I left with my two younger daughters, whereas my neighbour left with her daughter and my eldest daughter Asil. We reached a place called Mashrough Amer in Salahaddin Street and found a lot of vehicles that had been recently destroyed as they were still emitting fumes. [… ]We later learned from the news that Shawka, our neighbourhood, had been targeted by 600 missiles in the span of one hour. The area had been totally destroyed and, as far as I can remember, the missiles I witnessed appeared to have been fired from the ground, probably a tank. I understand that Rafah city was targeted mainly from the air. Al Shawka, however, is on the margins of Rafah and very close to the border. There, all the attacks were launched by tanks. When I returned home, I found my house partially destroyed by three missiles. The house was empty and nobody had been hurt.” Saleh Hussein Abu Mohsen from Rafah

354.        A father described an incident in which three persons were killed and six injured, including himself, while trying to flee to safety. Beginning on from 17 July, the family had moved from one refuge to another to avoid the shelling. When they arrived at Mashrou’ Amer on 1 August around 11 a.m., tanks in front of the Sa’ad Sayel barracks fired at them. When they ran away in two groups, the eldest daughter was killed. The commission understands that the fiercest attacks occurred during the first four hours following the rumored capture of Lt. Goldin. The bombardment was reported to have been most intense in the eastern neighbourhoods of Rafah, such as Mashru’ Amer, Tannur, Hay al Jneina, Uruba Street, Al Shawka, Zallata, the Airport neighbourhood and Salahaddin street, with up to 95 per cent of the victims coming from these neighbourhoods. Satellite imagery shared with the commission corroborates that the destruction was concentrated in these areas.

355.        Doctors working at the Abu Yousef Al Najjar Hospital in Rafah told the commission that, in the last days of July, many civilians had rushed to the hospital not to seek medical care but “because they felt that the hospital was the safest place for their families and children. On 1 August, as the security deteriorated, patients from Al Najjar hospital were transferred to the Kuwaiti hospital. According to eyewitnesses, two missiles struck the Al Najjar hospital, which caused destruction to some of the infrastructure such as the windows, doors and the air conditioning system. Ambulances were also hit. For instance, at around 3 p.m., an ambulance transporting injured civilians in the Msabbeh neighbourhood was hit. The vehicle caught fire and three crew members and 5 other people were killed. The commission spoke with two ambulance workers from Al Najjar hospital who witnessed part of the incident. They said that, earlier on that day, the Al Bir Taka Mosque in northern Rafah had been hit and they were called to rescue the wounded. Three ambulances were dispatched, one of them driven by their colleague Atef Salah Ibrahim Al Zamali, who took a short-cut in order to save time. When the other two ambulances arrived at the scene a little while later, they found Atef’s ambulance enveloped in flames, about 250 meters away from the mosque. They could not approach the vehicle due to the heat. While they were there, another strike on the burning ambulance caused a second explosion. The eyewitnesses thought that this second explosion was not caused by an airstrike, but by a mortar, as fragments of shrapnel exploded around the ambulance area. The intense bombardment continued. After extinguishing the fire, the Civil Defence managed to extract the burned bodies from the vehicle and found inside, in addition to the three ambulance crew members, the bodies of a man, a woman and three children. They discovered that the man was an elderly patient. The woman was his daughter who had asked to accompany him in order for her children to be evacuated to a safer place.

356.        Dozens of shells struck the premises of the hospital, wounding a number of civilians and causing marginal damage to its infrastructure. The hospital was eventually evacuated and no other casualties were reported. The doctors also said the hospital received more than a thousand casualties on the first day of the operation alone. According to the UN Protection Cluster, 100 fatalities were recorded in Rafah on 1 August 2014, including 75 civilians (24 children and 18 women). Leaked audio recordings of IDF radio communications suggest that the fire was indiscriminate, with one Lt. Colonel telling his troops “to stop firing like morons” and another ordering a hesitant soldier, “Go, go, go![…] Give him another shell”. According to a media report, the Givati Brigade Commander invoked the Hannibal Directive in response to the capture of the IDF soldier:

“[A]t 09:36, after speaking to the commander there I uttered a word no one wants to utter – Hannibal, i.e. abduction. I started planning an assault towards Rafah. I ordered all of our forces to move there, in order to prevent the abductors from moving”.

358.        The “Hannibal Directive” was devised in 1986 and is widely understood to be “a code word for an IDF order that states that in the case of abduction of a soldier, everything must be done to prevent the escape of the abductors or captors, using gunfire, even if it endangers the life of the soldier.” According to official Israeli sources, the “IDF General Staff Directive for Contending with Kidnapping Attempts [also known as the “Hannibal Directive”] provides methods and procedures for preventing and frustrating attempted kidnappings of Israeli nationals (both civilians and IDF soldiers). This Directive has been in force for decades and has been amended several times. […] As an operational order, however, the Directive’s specific content is classified. As with other classified directives, revealing all of this Directive’s contents would provide adversaries with the ability to frustrate its very purpose.”  It appears that the procedure is premised on a very strong political commitment by Israel to do its utmost to ensure that no soldiers are captured by armed groups to avoid substantial leverage to armed groups in subsequent negotiations with Israel. A press report quoting the commander of the IDF’s Orev Unit provides a possible explanation for how the IDF viewed the goals of the 1 August operation in Rafah:

In such an event you do all to prevent the country from experiencing another turmoil as it underwent in the Gilad Shalit affair

While the Hannibal procedure was modified several times, apparently to clarify that it did not call for the killing of captured soldiers, it appears still to be unusually expansive in terms of defining what targets are legitimate military objectives.

IDF’s and Palestinian armed group’s version of events

361.        The commander of the reconnaissance battalion of the Givati Brigade, Lieu Col Eli Gino, was reported as stating that, “The fire was proportionate, and when they kidnap a soldier, all means are kosher, even if it exacts a price”. The press further quoted Col. Winter as saying that, “those who kidnap need to know they will pay a price. This was not revenge. They simply messed with the wrong brigade”. The events of 1 August in Rafah are presently being considered by Israel’s Military Attorney General for a possible criminal investigation.

362.        Israeli media reported on 15 April 2015 that an internal investigation by the IDF had concluded that no war crimes had been committed. Instead, the findings shed light on operational flaws vis-à-vis the IDF’s reaction to the capture of Lt. Hadar Goldin.[1] The media cite Givati Brigade commander Col. Winter as having stated that “[t]he brigade’s plan of operation took into account the cease-fire going into effect and was based on a situation in which, by 8 a.m., the forces would cease attacks and only after securing the territory, would initiate searches for tunnels. However, this was not the situation, and when the cease-fire went into effect, forces from the patrol unit entered to search an area that had not been conquered and in an unsecured sector”. The IDF apparently concluded that “from an analysis of the unit’s actions, it can be determined that in contrast to standard warfare and the simple instructions given during Operation Protective Edge, here, as a brigade, we managed to confuse the fighters and to put them in an unreasonable situation

   363.        With respect to Hamas’s version of events, according to press reports, Hamas stated that “Israel pretends that one of its soldiers had been kidnapped to cover its crimes against the civilians in Gaza strip, and to divert the attention of international public opinion towards an Israeli prisoner with the Palestinian resistance.” He added: “We have no information about an Israeli prisoner.” Also according to press reports, in a press release of 2 August, Al Qassam Brigades announced that it was not “aware of a missing soldier, nor his whereabouts or the conditions of his disappearance.”

Summary Legal analysis

Several factual elements of the shelling and bombing in the Rafah area on 1 August 2014 lead to important concern as to the conformity of this attack with international law.

365.        Information received by the commission concerning attacks on all vehicles in the area, including ambulances, as well as incidents in which groups of civilians appear to have been targeted by tank fire, raises serious concerns as to the respect by the IDF of the principle of distinction. The alleged invocation by IDF troops of the Hannibal Directive may indicate that the objective of targeting vehicles was to prevent the flight of those who had captured an IDF soldier. While targeting a vehicle whose passengers are fighters and who are escaping with a captured soldier may be legitimate, the information reviewed by the commission reveals a different course of events.  In Rafah, all vehicles appear to have been targeted, irrespective of their civilian or military use. Civilian vehicles, including ambulances, are civilian objects and cannot be targeted unless they are used in a way that makes an effective contribution to the military action. International humanitarian law provides that in case of doubt whether an object that is normally used for civilian purposes is being used to make an effective military contribution, it shall be presumed not to be so used. However, based on information collected by the commission, the opposite appears to have been the case on 1 August in Rafah, where all vehicles in a certain area were targeted. This amounts to a deliberate attack against civilians and civilian objects and may amount to a war crime.

366.        Statements made on IDF audio recordings, as well as the amount and types of ordnance fired at some Rafah neighbourhoods, also raise concern with regards to the respect by IDF forces of the principle of distinction. The alleged use of over 250 mortar shells, a statistical weapon with a wide impact area, in a densely populated area, as well as the firing of over 800 artillery and tank shells with wide area effects in a densely populated and built up area over the period of a few hours, indicate the use by the IDF of methods and means of combat which in the circumstances were of a nature to strike military objectives and civilians or civilian objects without distinction. This is demonstrated by the high number of shells that hit the Al Najjar hospital premises, and the number of civilians who were struck by shells in the street while attempting to flee. The attack of 1 August 2014, therefore, appears to have violated the prohibition of indiscriminate attacks.

367.        In relation to the “Hannibal Directive”, the IDF has stressed that: “allegations that IDF directives, and particularly, the IDF General Staff Directive for Contending with Kidnapping Attempts (also known as the “Hannibal Directive”), permit IDF forces to exercise force in a manner that does not accord with the principle of proportionality, are incorrect. […] The Directive does not grant permission to violate the Law of Armed Conflict, including the rules relating to distinction and proportionality. To the contrary, and as with all IDF directives concerning combat situations, IDF forces are required to adhere to the Law of Armed Conflict at all times when implementing the directives’ provisions. The use of unrestrained force is never permitted, even in the direst of circumstances.

368.        Nevertheless, the attack in Rafah on “Black Friday” raises concerns with regard to the IDF’s respect of the principle of proportionality. The invocation of the ‘Hannibal Directive’ and reported statements by IDF officers present during the attack provide a clear indication of the objective of the attack – namely preventing or putting an end to the capture by an armed group of an IDF soldier. Given the amount and type of ordnance used, as well as the likely presence of civilians in the area due to the announced ceasefire, a reasonable military commander should have known that such an attack could result in a high number of civilian casualties as well as in damage to civilian objects. In order for an attack to be considered proportionate, international law requires that the expected incidental loss of civilian life and damage to civilian objects not be excessive in relation to the concrete and direct military advantage anticipated.

369.        The latter point must be examined in depth. Preventing the capture or freeing a soldier from captivity may be conceived as a concrete and direct military advantage, albeit of a limited nature, since the loss of one soldier in a large army such as the IDF does not reduce its military capability. When doing so in a manner that is highly likely to result in the soldier’s death, it further reduces the concrete and direct military advantage. On the other hand, some have argued that in such a case the proportionality test must take into account the strategic consideration of denying the armed groups the leverage they could obtain over Israel in negotiations for the release of the captured soldier.

370.        The commission considers this an erroneous interpretation of international humanitarian law. The leverage that armed groups may obtain in negotiations does not depend solely on the capture of a soldier, but on how the Government of Israel decides to react to the capture in the aftermath. The strategic military or political advantage sought is therefore not a concrete and direct military advantage as required by international humanitarian law. An assessment of the strategic and political advantage depends on a large number of post facto elements which are merely speculative for the commander on the ground at the moment he decides to launch the attack. Indeed, the proposed interpretation of the anticipated military advantage, which would allow for abstract political and long-term strategic considerations in carrying out the proportionality analysis, would have the consequence of emptying the proportionality principle of any protective element. The commission finds therefore that the IDF attack of 1 August 2014 in Rafah could have been expected to cause incidental loss of civilian life and damage to civilian objects which would be grossly excessive in relation to the anticipated concrete and direct military advantage, and may therefore amount to a war crime.

371.        What is more, the commission believes that the military culture resulting from such policy priorities may have been a contributing factor for the unleashing of massive firepower on Rafah, in total disregard for its impact on the civilian population. Applying the ‘Hannibal Directive’ in the context of a densely populated urban environment using heavy weaponry inevitably leads to violations of the principles of distinction and proportionality.

372.        The nature of the attack, as well as statements reportedly made by an officer present in Rafah after the events, indicate that the IDF did not comply with its obligation to take constant care to spare civilians. Based on the information gathered by the commission, it does not appear that the IDF took all feasible precautions to adequately verify whether the targets of the attacks were indeed lawful military objectives and to choose the weapons used in the attack with a view to avoiding or at the very least to minimizing civilian casualties and damage to civilian objects.

373.         Finally, as the IDF had aerial assets over Rafah on “Black Friday”, it is very likely that commanders on the ground quickly gained knowledge of the calamitous impact of the attacks on civilians and civilian objects. This knowledge of the likelihood that the intense bombardment would lead to significant casualties is illustrated by the warning given to the doctors in Al Najjar hospital to evacuate the hospital. Yet, even though the attack lasted several hours, it was not suspended. This may constitute a violation of the obligation to do everything feasible to suspend or cancel an attack when it becomes apparent it is not respecting the principles of distinction or proportionality.

374.        The strikes against the Al Najjar hospital and against ambulances in Rafah also raise concerns as to the respect by Israel of the obligation to protect medical units and transports in all circumstances.

This week, Amnesty International released its report about Black Friday, see here.

There is overwhelming evidence that Israeli forces committed disproportionate, or otherwise indiscriminate, attacks which killed scores of civilians in their homes, on the streets and in vehicles and injured many more. This includes repeatedly firing artillery and other imprecise explosive weapons in densely populated civilian areas during the attacks on Rafah between 1 and 4 August. In some cases, there are indications that they directly fired at and killed civilians, including people fleeing.

In response, the Israeli spokesperson said: “In contrast to Amnesty’s claims, the IDF – as the military of a democratic state committed to the rule of law – conducts all its operations in accordance with international law”.

Mondoweiss and Ynet published an 11-minute video earlier this year containing heavily edited recordings set to dramatic music and “published with permission from the IDF censor.” Chief of Staff Benny Gantz denounced their release — “The army is not a reality TV show…not that I’m hiding anything” — and has reportedly ordered the military police to find those responsible.  Watch the video here.

A journalist/commentator with The Independent, Ahron Bregman, provided some insight into the man responsible for the IDF’s actions on Black Friday.

“The colonel who orchestrated the assault on Rafah was Ofer Winter, the commander of the Givati Brigade. A religious settler, on the eve of the Gaza war he dispatched a letter to his troops, laden with biblical references, which perhaps explains the ferocity with which they attacked Rafah.

What Colonel Winter called on his troops to do was, effectively, to conduct a religious war on Gaza. Here are some quotes from his letter:

“History has chosen us to be the sharp edge of the bayonet of fighting the terrorist enemy from Gaza which curses, defames and abuses the God of Israel’s battles … We will… wipe out the enemy… Using all means at our disposal and with all required force… I turn my eyes to the sky and call with you ‘Hear, O Israel: The Lord our God is one Lord.’ God, the Lord of Israel, make our path successful, as we are about to fight for Your People, Israel, against an enemy who defames your name.”

Colonel Winter managed to wipe out many Palestinians — but alas, they were non-combatant civilians. Therefore his actions, as well as those working with him, must be thoroughly investigated by the UN to establish whether it amounted to war crimes. We cannot allow The Hannibal Protocol to be used in such a way again.”

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Day #24 – July 30, 2014 – Capitol Hill Briefing

A year following Israel’s Operation Protective Edge —- its 51-day assault on Gaza —- members of the U.S. Congress have received precious little information about the impacts of Israel’s military campaign, the one they generously funded and restocked on this day in 2014. ABC News reported (7-30-14):

On July 20 Israel made a foreign military sales request for munitions that included an undisclosed amount of 120 mm tank rounds and 40 mm illumination rounds for grenade launchers. The defense official said the ammunition was sold to Israel as a “routine” foreign military sales request and not an emergency request to tap into the U.S. military stockpile in Israel.

The Israeli request to purchase the ammunition was made just days after Israel launched its ground offensive into Gaza. The fighting in Gaza since has resulted in the deaths of 1,340 Palestinians and 59 Israelis, according to the Palestinian Health Ministry. More than 7,200 have been injured.

The U.S. Campaign to End the Israeli Occupation, along with others, organized a briefing for Congress yesterday.  About 75 people attended, a good number considering the event was competing with a hearing on the nuclear agreement with Iran.

The full hour-long video of the briefing is available here.  The speakers were:

Nadia Ben-Youssef, USA Representative, Adalah: The Legal Center for Arab Minority Rights in Israel

Eman Mohammed, Gaza photojournalist; contributor, Gaza Unsilenced

Brad Parker, International Advocacy Officer, Defense for Children International Palestine

Moderated by: Josh Ruebner, Policy Director, US Campaign to End the Israeli Occupation

Each speaker is a heavy-weight in his/her own right and each presents compelling testimony. You can view each of their presentations separately here.

If you have time or a limited attention span and can only watch one, I recommend Nadia’s presentation. She is an attorney who talks about the efforts to hold Israel accountable.

Although I invited my Congressional delegation, they didn’t attend. 😦  I’m going to send them this blog post with a simple request.  After funding Israel’s military and giving the Green Light for its operation last summer, they should be informed about the impacts of U.S. unconditional support for Israel’s “right to defend” itself.  I’m going to be a pitbull and demand they listen to Nadia Ben-Youssef.

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Day #7 – July 13, 2014 – Jon Snow returned to Gaza

British journalist Jon Snow returned to Gaza one year after the war to see for himself what changes have occurred. I wonder if any American journalists have returned to Gaza.

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