Appendix 2: IDF response

Israel Defense Forces

IDF Spokesperson Unit

International Organizations Desk

Phone: 972-3-5691842 Fax: 972-3-5693971

ז - א - 3913

Mr. Joe Storl

Deputy Director, Middle East and North Africa Division

Human Rights Watch

Via fax':202-612-4333

 

Dear Joe Stork,

RE: Reply to your query dated 8/21/09

Please find below our response to your query dated 8/21/09:

1. Answers to most of your questions, as well as information relating to other aspects of operation Cast Lead can be found in "THE OPERATION IN GAZA – FACTUAL AND LEGAL ASPECTS" report (available at: www.mag.idf.il); and, in the summary of the findings of the general investigation into "Damage to infrastructure and destruction of buildings by ground forces", which was published on April 22nd, 2009 (please find attached a copy of the relevant pages).
2. With regard to the specific incidents referred to in your letter, should suspicion of wrongful conduct arise, and should it remain unaddressed by the findings of the aforementioned general investigation, they will be examined by the relevant IDF bodies, as it has been done in the past, regarding other queries received. In light of the available information, the Military Advocate General will then decide what additional steps, if any, should be taken.
3. Needless to say, that the IDF will not hesitate to thoroughly investigate any incident or testimony (sufficiently founded), as it has done to date.

Sincerely,

Lt. Col. Assaf Librati

Head of Public Affairs Branch

IDF Spokesperson Unit

Annex E:

Primary Conclusions:

Damage to infrastructure and destruction of buildings by ground forces

This investigation, carried out by Col. Adam Zusman, focused on issues relating to the infrastructure operations and the demolishing of structures by the IDF forces during the ground operations phase of Operation Cast Lead. During the investigation the commanders of the forces that participated in the operation were questioned in relation to the issues being investigated. In addition, the investigation gathering data from relevant institutions and examined the relevant military orders.

The investigation showed that Hamas based its main line of defense on civilian infrastructure in the Gaza Strip (i.e. buildings, infrastructure, agricultural lands etc.), and specifically on booby trapped structures (mostly residential), the digging of explosive tunnels and tunnels intended for the moving of people and weaponry. This created an above ground and underground deployment in the Gaza Strip's urban areas by Hamas. During the operation, IDF forces were forced not only to fight the gunmen themselves, but to also deal with the physical terrorist infrastructure prepared by the Hamas and other terrorist organizations in advance. As part of this challenge, the forces demolished structures that threatened the forces and had to be removed – houses which were used by the enemy; other structures used by the enemy for terrorist activity; structures that prevented the forces from moving from one area to another (given that many of the roads were booby trapped); structures that were used to protect Israeli soldiers; agricultural elements used as cover for enemy tunnels and infrastructure; and infrastructure next to the security fence used by Hamas for operations against IDF forces or for digging tunnels into Israeli territory.

IDF operations which were intended to demolish booby trapped or structures rigged with explosives(and other similar operations) successfullyprevented the enemy from detonating these structures while IDF forces were in them, despite the enormous efforts made by Hamas and other terrorist organizations, who rigged a substantial number of buildings to explode in the areas where the IDF operated.

The investigation shows that in all the areas of operation, the decision to authorize the demolishing of houses wasonly made by high ranking officers. In addition, the destruction of buildings was only initiated after it was determined by the forces that they were vacant. As a result, as far as the investigation was able to determine, no uninvolved civilians were harmed during the demolition of infrastructure and buildings by IDF forces.

The investigation showed that in many cases, the preparations made by Hamas and other terrorist organizations were responsible for the significant damage caused to houses. This was due to the secondary explosions caused by the detonation of explosive devices or weaponry placed by Hamas within the structures. This was illustrated by an incident which was investigated, in which a building in one of Gaza's northern neighborhoods was fired upon, resulting in the unexpected detonation of a chain of explosive devices planted by Hamas, damaging many other buildings in the neighborhood.

The investigation showed that the orders and directions given with regard to damage to property during the operation, at all levels, emphasized that all demolition operations should be carried out in a manner which would minimize to the greatest extent possible the damage caused to any property not used by Hamas and other terror organizations in the fighting. During the investigation it was apparent that that this issue was not stressed sufficiently in the written plans for the operation. However, the investigation clearly showed that the forces in the field understood in which circumstances structures or infrastructure could be demolished as well as the limitations relating to demolitions.

The investigations did not identify any instances of intentional harm done to civilian infrastructure and with the exception of a single incident (which was immediately halted by the relevant Brigade Commander, and was dealt with using disciplinary measures) it didn't find any incidents in which structures or property were damaged as "punishment" or without an operational justification. In all of the areas in which the IDF operated, the level of damage to the infrastructure was proportional, and did not deviate from that which was required to fulfill the operational requirements.

Overall, the extent of damage caused to buildings was a direct result of the extensive use by Hamas of those same buildings for terrorist purposes and targeting IDF forces.

The IDF Chief of the General Staff, Lt. Gen. Gabi Ashkenazi accepted the recommendation made by the head of the investigation to create clear regulations and orders with regard to the issue of demolition of infrastructure and structures as well as a clear combat doctrine. Lt. Gen. Ashkenazi also accepted the recommendation that the combat doctrine should include a definition of relevant "incidents and responses" to be distributed amongst all combat forces. Lt. Gen. Ashkenazi also accepted the recommendation to create a clear procedure of documentation and reporting for such operations. The conclusion that the extent of the demolished infrastructure and building was proportionate, in light of the operational requirements, was also approved by the IDF Chief of the General Staff.

THE OPERATION IN GAZA: FACTUAL AND LEGAL ASPECTS       

 (b) Destruction of Private Property

436. Some destruction of private property and infrastructure is an unfortunate but inescapable by-product of every armed conflict. While recognising this reality, the Law of Armed Conflict requires that the damage be justified by military necessity. For instance, Article 23(g) of the Hague Regulations of 1907 states that it is forbidden “to destroy or seize the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war.”

437. The investigations thus far reveal that although IDF forces were instructed to operate carefully at all times and to minimise collateral damage to civilian property to the extent possible, extensive damage to civilian infrastructure and personal property did occur in the course of the Gaza Operation. Much of the damage was demanded by the necessities of war and was the outcome of Hamas’ mode of operating.

438. As explained in Section V.B above, Hamas based its main line of defence on civilian infrastructure in the Gaza Strip (i.e. buildings, infrastructure, agricultural lands etc.), and specifically on booby-trapped structures (mostly residential), the digging of explosive tunnels and tunnels intended for the moving of fighters and weaponry. This created an above-ground and underground deployment by Hamas in the Gaza Strip’s urban areas. During the Gaza Operation, IDF troops were forced not only to fight the terrorists themselves, but also to deal with the physical infrastructure prepared in advance by Hamas and other terrorist organisations.

439. As part of this challenge, IDF forces demolished structures that threatened their troops and had to be removed. These included (1) houses which were actually used by Hamas operatives for military purposes in the course of the fighting, (2) other structures used by Hamas operatives for terrorist activity, (3) structures whose total or partial destruction was imperatively required for military necessities, such as the movement of forces from one area to another (given that many of the roads were booby-trapped), (4) agricultural elements used as cover for terrorist tunnels and infrastructure, and (5) infrastructure next to the security fence between Gaza and Israel, used by Hamas for operations against IDF forces or for digging tunnels into Israeli territory.

440. Despite the enormous efforts made by Hamas and other terrorist organisations, who rigged a substantial number of buildings to explode in the areas where IDF forces were present, IDF actions to destroy such buildings in advance successfully prevented their detonation while IDF forces were in them

441. In the context of this complex battlefield, Israeli forces were instructed to operate carefully at all times, and to minimise collateral damage to the extent possible. For purposes of the Law of Armed Conflict, the extent of the damage to private property and infrastructure is not itself indicative of a violation. Rather, as already explained, in each case it must be considered whether a legitimate military purpose existed and if the damage to property was proportional to this aim. Furthermore, unanticipated damage and damage caused by Hamas cannot be blamed on Israeli forces.

442. In light of the multiple allegations raised against the IDF in connection with the destruction of residential and public buildings during the conflict, the IDF launched a full investigation into allegations of excessive damage to civilian objects during the Gaza Operation. The IDF investigation (which is now being examined by the Military Advocate General) confirmed that although relatively extensive damage was caused to private property, the IDF’s activities which caused this damage complied with the Law of Armed Conflict. The Law of Armed Conflict allows the destruction of private property where, as here, it is a matter of military necessity. With the exception of a single incident, which was immediately halted by the relevant Commander and was dealt with using disciplinary measures, the investigation did not find any incidents in which structures or property were damaged as “punishment” or without an operational justification.

443. The investigation showed that in all the areas of operation, the decision to authorise the demolition of houses was made only by high ranking officers. In addition, the destruction of buildings was only initiated after it was determined by the forces that they were vacant in order to minimise civilian casualties. Accordingly, as far as the investigation was able to determine, no civilians were harmed during the demolition of infrastructure and buildings by IDF forces.

444. The investigation showed that, in many cases, the preparations made by Hamas and other terrorist organisations were responsible for the significant damage caused to houses. As explained above, unanticipated damage to some buildings occurred due to the existence of subterranean tunnels that were unknown to IDF forces. In other cases, the damage was due to the secondary explosions caused by the detonation of explosive devices or weaponry placed by Hamas within the structures. This was illustrated by an incident in which a building in one of Gaza’s northern neighbourhoods was fired upon, resulting in the unexpected detonation of a chain of explosive devices planted by Hamas, damaging many other buildings in the neighbourhood.

445. It should be emphasised that IDF orders and directions, dealing with the destruction of private property and applicable in the Gaza Operation, stressed that all demolition operations should be carried out in a manner that would minimise to the greatest extent possible the damage caused to any property not used by Hamas and other terrorist organisations in the fighting. Nevertheless, due to the complex dilemmas commanders faced with regard to decisions on destruction of property in the course of fighting in Gaza, as a result of Hamas’ mode of operations, one of the lessons learned was that there should be a set of clear rules in this regard that will assist commanders in taking such decisions in the future. Accordingly, the Chief of the General Staff instructed the creation of such clear regulations and orders, as well as a clear combat doctrine, with regard to demolition of infrastructure and structures.