Appendices

 

October 20, 2009

Prime Minister Ismail Haniya

Prime Minister’s Office

Jerusalem Street

Tal al-Hawa

Gaza

Dear Prime Minister Haniya:

We are writing you after the United Nations Human Rights Council's resolution last week endorsing the report of the UN Fact Finding Mission on the Gaza Conflict. We view the report prepared by Justice Richard Goldstone as a crucial forward step towards securing accountability for the civilian victims of the war on all sides. A key component of the report is its call on all parties to the conflict to conduct credible domestic investigations within six months.

We welcome the October 15 statement from your foreign ministry, which says the authorities will conduct investigations into the allegations against the armed wing of Hamas and other Palestinian armed groups. We therefore call on Hamas to conduct thorough, independent and impartial investigations into alleged violations of international humanitarian law by members of the Qassam Brigades and other armed groups in Gaza, and to prosecute in conformity with international fair trial standards those found responsible for rocket attacks that target Israeli population centers, as recommended by the Goldstone report.

Human Rights Watch recognizes that IDF military operations caused far greater total harm to civilian lives and property than operations by Palestinian armed groups during the December-January conflict. The conflict was characterized by great disparity in the military strength of the parties, and Human Rights Watch has documented serious violations of the laws of war by Israeli forces, including the unlawful use of white phosphorus, the killing of civilians with drone-fired missiles, and the killing of civilians waving white flags.

However, these violations and the high death toll in Gaza do not detract from the need to investigate serious violations of the laws of war by all sides. Nor can they justify violations by Hamas. Violations of the laws of war are not measured in the number of civilian casualties, but whether each side is taking all feasible precautions to minimize civilian loss. Using unsophisticated weapons does not justify failure to respect the laws of war; nor does an adversary's use of sophisticated weapons provide a pass to its opponents to ignore those laws. The unnecessary loss of civilian life can be minimized only if both parties recognize and respect their obligations to abide by the laws of war, however sophisticated or unsophisticated the weapons at their disposal.

Human Rights Watch would also like to ask for clarification of recent statements by Hamas spokespersons that Hamas rocket attacks into southern Israel were intended to target Israeli military bases, but not Israeli civilians.  Previous statements by Hamas leaders, as well as our own research, indicate that rocket attacks by Hamas and other Palestinian armed groups deliberately targeted Israeli civilians or were launched towards Israeli population centers indiscriminately. The Goldstone report concluded that Hamas was responsible for serious violations of the laws of war, including war crimes and possible crimes against humanity, in connection with these rocket attacks directed against Israeli civilians.

According to an October 1 interview with the Ma'an news agency, Ahmad Yusuf, an advisory with your foreign ministry, said: "Hamas has said all the time that they were targeting military bases. Maybe because these are primitive weapons -- the rockets, because they're homemade -- maybe some of these rockets missed their targets, some of them fell short." According to The Media Line news service, Yusuf made similar comments on September 21: "In Hamas, we have said that we never intended to target civilians during the war. These are home-made rockets and they were targeting military bases, but some of them may have missed the targets causing three Israeli [deaths] and a few injured."

In the past, leaders of Hamas and other armed groups have publicly expressed an apparent intent to target Israeli civilians, seeking to justify their attacks as lawful reprisals for Israeli attacks against Palestinian civilians. For example, Abu Obeida, identified as a spokesman for the Qassam Brigades, said in a pre-recorded video released on January 5, 2009 that "continuing the incursion will only make us increase our rocket range [...]. We will double the number of Israelis under fire." He did not make any distinction between civilians and military forces. In a speech broadcast the same day, Mahmoud Zahar said, "The Israeli enemy ... shelled everyone in Gaza. They shelled children and hospitals and mosques, and in doing so, they gave us legitimacy to strike them in the same way." Under the laws of war, reprisals against civilians are prohibited.

In addition, Hamas leaders seem to have claimed that rocket attacks against Israeli civilians are justified as part of their resistance tactics against Israeli occupation. In an interview on May 5, head of the Hamas political bureau Khaled Meshal appeared to acknowledge that Hamas rocket attacks intentionally targeted Israeli civilians. In the course of describing why Hamas had decided to stop firing rockets for the time being, Meshal said:

Not targeting civilians is part of an evaluation of the movement to serve the people's interest. Firing these rockets is a method and not the goal. The right to resist the occupation is a legitimate right but practicing this right is decided by the leadership within the movement.

Any party which partakes in hostilities, irrespective of the basis on which they assert a right to do so, must comply with the laws of war which provide that civilians are protected from attack and prohibit directing attacks against civilian objects and attacks that will have indiscriminate or disproportionate impact on civilian objects. 

According to the website of the Izz al-Din al-Qassam Brigades, the group launched 345 Qassam rockets, 213 Grad rockets, as well as mortar rounds and other munitions from December 27, 2008 to January 18, 2009. The Qassam Brigades website claimed responsibility for each of the three Israeli civilian deaths caused by rocket attacks in late December 2008, which Human Rights Watch investigated.

Previous Qassam Brigades statements also indicated an intent to target civilian areas. A Qassam Brigades statement dated June 11, 2006, said that in response to an Israeli attack that targeted a group of fighters, that the group had carried out a rocket attack against Sderot and would continue attacking Sderot "until its residents flee in horror. We will turn Sderot into a ghost town."

The absence of Israeli military forces in the areas struck by the rockets indicates that many of these attacks are deliberately intended to strike Israeli civilians and civilian structures.

In addition the rockets fired by Hamas and other armed groups cannot be reliably aimed. Civilian structures damaged in Israel by rocket attacks since December 27, 2008 include a kindergarten, a synagogue and private homes. The inability to fire these rockets with any degree of accuracy has resulted in rockets also striking areas inside Gaza: on December 26, 2008 a Palestinian rocket hit a house in Beit Lahiya, killing two Palestinian girls, ages 5 and 12. Under applicable international humanitarian law, such weapons are inherently indiscriminate when directed towards populated areas.

Hamas and other Palestinian armed groups have also violated the laws of war by firing rockets from within populated areas. While fighting in urban areas is not prohibited under the laws of war, firing rockets from within or near populated areas places Palestinian civilians at grave risk of Israeli counter-attacks, and violates the laws-of-war obligation to take all feasible precautions to avoid placing military targets within or near densely populated areas and to protect civilians from the danger resulting from military operations.

The Goldstone report's recommendations represent an opportunity for the Gaza authorities to repudiate unlawful attacks on Israeli civilians in future, and to meet their obligations under international law to investigate and bring to justice those responsible for past attacks. Human Rights Watch is not aware of any previous inquiries by the Gaza authorities into such attacks, and we ask you to initiate thorough and impartial investigations as a matter of urgency.

Sincerely,

 

Sarah Leah Whitson

Executive Director

Middle East and North Africa division

***

 

 

Brig.-Gen. Avichai Mandelblit

Military Advocate General

Israel Defense Forces

MAG Building #22

Ha’Kirya, Tel Aviv

November 16, 2009

Dear General Mandelblit,

I am writing to request information for a forthcoming Human Rights Watch report. We are researching the steps that the authorities in Israel (and in Gaza) are taking to investigate credible allegations of laws-of-war violations by their respective forces during the latest armed conflict in Gaza and southern Israel.

We would very much appreciate it if your office could provide us with responses to the questions listed below, which relate to allegations of violations of the laws of war by the IDF during “Operation Cast Lead.” We understand that, as of November 5, the IDF has investigated or is investigating 128 incidents that occurred during Operation Cast Lead. We are seeking more specific information about these incidents and the progress of investigations.

I. General questions:

1. For each of the 128 incidents that the IDF has investigated or is investigating, could you please provide the following information:

a.      the date, time and location of the incident;

b.      the alleged misconduct that is the subject of investigation;

c.       the type of investigation that has been or is being conducted;

d.      the body responsible for the investigation (e.g., criminal investigations division of the military police) and the number of staff involved in the investigation;

e.     the reason the investigation was initiated (e.g., due to internal “field investigations,” complaints by nongovernmental organizations, presented in the report of the UN Fact Finding Mission on the Gaza Conflict);

f.        the date the investigation began;

g.      the current status of the investigation (e.g. open, closed, or referred for further investigation);

h.      the number of Palestinian victims or witnesses the IDF has interviewed in connection with the investigation;

i.        the outcome or findings of the investigation; and

j.        if the incident was referred for further investigation, the date of the referral and the person or office to which the referral was made, as well as any subsequent decisions on the case.

1. In addition to the 128 incidents, has the IDF opened disciplinary proceedings against any soldiers or commanders for events in connection with Operation Cast Lead?  If yes, against whom, when and for what? What is the status of these investigations?
2. Could you please inform us of any case where the IDF has opened criminal proceedings against military personnel for actions during Operation Cast Lead; the date, location, and circumstances of the incident; the rank of each soldier investigated; whether the soldier has been indicted; and if applicable, the penalty imposed?
3. Will the full findings of all investigations be made public? If so, at what stage of the investigation will they be made public?

II. Incident questions: We would like to take this opportunity to ask for information regarding questions we submitted to the IDF Spokesperson’s office during the course of researching reports regarding Operation Cast Lead, as we have not received responses to our questions.

1. On the use of white phosphorous munitions: On February 1, Human Rights Watch informed the IDF Spokesperson’s office of six cases where we documented the use of white phosphorus munitions in attacks that caused death or injury to civilians, and asked for further information regarding these incidents. A copy of our letter is attached. We have not received a response to our inquiry.

Which specific incidents involving the use of white phosphorus have been investigated? According to the July 29 Ministry of Foreign Affairs (MFA) report, while the IDF has concluded its field investigations on the use of white phosphorus, “ further stages of the review are ongoing.” What is the status of these investigations? Have any incidents been referred to the military police? If so, who is conducting the investigation, and what are the terms of reference?

1. Incidents that involve the killing of civilians with white flags: On February 11, 2009 Human Rights Watch informed the IDF Spokesperson’s office of eight cases where we documented attacks in which civilians who were holding white flags were killed, and asked for further information regarding these incidents. A copy of our letter is attached. We have not received a response, but the IDF has contacted us with respect to five of the cases we documented. We are aware that they have interviewed 21 witnesses at the Erez border crossing.

According to the July 29 MFA report there are over 21 incidents that are pending field investigations, including five incidents involving civilians who were killed while holding white flags. The MFA report is unclear on the specific dates, locations, and number of persons killed and injured. What is the current status of the white flag incidents? Which incidents are pending? Have any incidents been referred to military police? If so, who is conducting the investigation, and what are the terms of reference of the investigations?

1. Incidents that involve civilians killed by drone-launched missiles: On March 12, 2009, Human Rights Watch informed the IDF Spokesperson’s office of seven cases where we documented attacks by drone-launched missiles that caused death or injury to 29 civilians, and asked for further information regarding these incidents. A copy of our letter is attached. We have not received a response. Have investigations been launched into any of these incidents and, if so, which ones?

1. On December 27, an IDF drone launched a missile at a group of Palestinian civilians and students waiting for a UN bus, killing 12 people.

According to the July 29 MFA report, a “field investigation [is] in progress” with respect to this incident. What is the status of the investigation? Have any of incidents been referred to the military police? If so, who is conducting the investigation, and what are the terms of reference of the investigations?

1. We documented five other drone-launched missile attacks that involving the deaths of Palestinian civilians: 1) On December 29, an Israeli drone launched a missile at a truck being loaded with oxygen canisters killing ten people, including six children. 2) On January 4 in Gaza City, an Israeli drone launched a missile at two children playing on a roof, killing both. 3) On January 4 in Gaza City, a missile was launched at the Habbash family home, killing two children and injuring three others. 4) On January 5, another missile hit and killed a child on a rooftop in al-Sha’f of Gaza City. 5) On January 5, an IDF drone launched a missile at UNRWA Asma Elementary school killing three people.

According to the July 29 MFA report, all of these incidents have undergone IDF operational debriefings (“field investigations”) but remain open to further investigation pending decisions by the Military Advocate General. What is the status of these investigations? Have any of these incidents been referred to the military police? If so, who is conducting the investigation, and what are the terms of reference of the investigations?

1. On January 7, 2009, we informed your office that Mr. Akram al-Ghoul and Mahmoud Salah Ahmad al-Ghoul, the father and cousin of a Human Rights Watch research assistant, Fares Akram al-Ghoul, were killed in an attack on their farm in northern Gaza on January 3, 2009. We have not received a response.

Please inform us whether any investigation has been opened into these deaths and if so the status of the investigation.

1. On August 21, 2009 Human Rights Watch informed the IDF Spokesperson’s office of nine cases where we documented the destruction of civilian property apparently without military necessity, and asked for further information regarding these incidents. A copy of our letter is attached. We received a response on September 6, which did not answer our questions regarding specific incidents.

Have any of these incidents been investigated? What is the status of these investigations? Have any incidents been referred to the military police? If so, who is conducting the investigation, and what are the terms of reference?

Thank you for your attention to this request. We would appreciate it very much if you could respond by November 30, 2009.

Sincerely, 

 

Joe Stork

Deputy Director

Middle East and North Africa division

***

 

 

November 23, 2009

Prime Minister Ismail Haniya

Prime Minister’s Office

Jerusalem Street

Tal al-Hawa

Gaza

Dear Prime Minister Haniya,

I am writing to request information for a forthcoming Human Rights Watch report. We are researching the steps that the authorities in Gaza (and Israel) are taking to investigate credible allegations of laws-of-war violations by their respective forces during the latest armed conflict in Gaza and southern Israel.

We would very much appreciate it if your office could provide us with responses to the questions below, which relate to allegations of violations of the laws of war by Hamas and other Palestinian armed groups during the December-January hostilities.

Thank you for your attention to this request. We would appreciate it very much if you could respond by December 4, 2009.

Sincerely,

 

Joe Stork

Deputy Director

Middle East and North Africa division

 

QUESTIONS FOR THE GOVERNMENT OF ISMAIL HANIYA

1.                                        On October 15, 2009, the Foreign Ministry in Gaza stated that, “Although we do not agree with certain aspects of his [Goldstone] report, we intend to act on his recommendation and to carry out our own investigation into any alleged crimes committed by members of the resistance movements in Gaza.” Have the authorities opened any investigations? If yes, how many and into which cases? Who is conducting the investigations and when do you expect them to be completed? Will the results be made public?

2.                                       On October 19, 2009 we wrote you a letter, asking for clarification on Hamas’s position on the targeting of civilians. Repeated statements by Hamas officials and fighters indicate an intent to direct rockets toward Israeli civilian targets, but recently at least one senior official, Ahmad Yousef, said that Hamas only aimed at Israeli military targets, rather than civilians, and that some rockets may have missed their targets because they are “primitive weapons.” Can you clarify this apparent contradiction?

3.                                       On December 29, 2008 a Grad-type rocket struck the city of Ashkelon, about 16 kilometers north of the armistice line, killing Hani al-Mahdi, 27, a construction worker from the Bedouin village of Aro’ar, and wounding several others. Has your government opened an investigation into the incident? If yes, what type of investigation and by whom?

4.                                       Also on December 29, 2008, a rocket launched from Gaza hit a car in the city of Ashdod, killing Irit Sheetrit, a 39-year-old school secretary, and injuring her sister. The al-Qassam Brigades on its website ( http://www.alqassam.ps/arabic/statments1.php?id=4098 ) claimed credit for the attack. Has your government opened an investigation into the incident? If yes, what type of investigation and by whom?

5.                                        On December 27, 2008, a rocket launched from Gaza killed Beber Vaknin, a 58-year-old window installer, in Netivot. Has your government opened an investigation into the incident? If yes, what type of investigation and by whom?

6.                                       On December 26, 2008, a rocket launched from Gaza hit a house in Beit Lahiya, Gaza, killing two children, Sabbah Abu Khusa, 12, and Hanein ’Ali Abu Khusa, 5, and injuring another child. Has your government opened an investigation into the incident? If yes, what type of investigation and by whom?

7.                                        Has your government conducted any investigations into allegations that persons affiliated with Hamas security forces were responsible for extrajudicial executions during the December-January hostilities, including persons suspected of collaboration with Israel who had been held in the Gaza Central Prison but escaped when Israeli warplanes bombed that facility on December 28, 2008? If so, could you inform us which killings have been investigated and the results of those investigations?

8.                                       On December 29, 2008, after Israeli forces bombed Gaza Central Prison, Saleh Hajoj, 32, was taken to Al-Shifa Hospital in Gaza Citywhere he was abducted by a group of men and shot in the back of the head. Has your government opened an investigation into the incident? If yes, what type of investigation and by whom?

9.                                       Has your government conducted any investigations into shootings by masked gunmen during or immediately after the Israeli military operations that killed or wounded persons? Has the government investigated any of the numerous reported incidents of shootings apparently intended to maim, such as shootings at the legs of persons who are or are suspected of being supporters of Fatah? If so, could you inform us which shooting incidents have been investigated and the results of those investigations?

10.                                    Human Rights Watch has information concerning the deaths of Zaher Ahmad al-Za’anin (40), Jamil Shakura (51), Nihad Sa’adi al Dabbaka (47), Ata Yusif Abd al-Wahhab al-Bur’I, all of whom died apparently as the result of torture following their apprehension or abduction by persons claiming to work for Internal Security or other Hamas security forces. Has your government investigated the circumstances surrounding any of these deaths? If so, could you provide information about the results of the investigations? Have the authorities taken into custody anyone suspected of responsibility for any of these deaths?