These People Don’t Agree on Anything!

For three weeks in the winter of 2008 to 2009, Israel assaulted the Gaza Strip and went after the Hamas operatives who rule the area. But the military struggle, code-named Operation Cast Lead, would become a mere prelude for the drawn-out political and legal struggle to follow.

In September 2009, the U.N. Human Rights Council Fact-Finding Mission, led by South African judge Richard Goldstone, released a scathing report accusing Israel of violating humanitarian law in its attack — in essence, not merely targeting the Hamas militants who threatened Israel, but practicing a form of collective punishment against all Palestinians living in Gaza. The report found that the actions of the Israel Defense Forces (IDF) “constitute[s] grave breaches of the Fourth Geneva Convention in respect of willful killings and willfully causing great suffering to protected persons and as such give rise to individual criminal responsibility.”

The report’s findings stoked outrage in the Arab world, threatened to isolate Israeli internationally — and raised the specter of prosecution in foreign criminal courts for some of Israel’s leading politicians. Benjamin Netanyahu’s government reacted with equal anger, accusing its critics of distorting the record of the Israeli armed forces and of bias against the Jewish people. Defense Minister Ehud Barak referred to the report as “false, distorted, and irresponsible,” while Information Minister Yuli Edelstein described it as “simply a type of anti-Semitism.”

On Jan. 29, the Israeli government fired back with a comprehensive defense of its conduct during Operation Cast Lead. On virtually every aspect of the Gaza war — including Israeli intentions, the efficacy of Israel’s own investigations, and specific events that occurred during the war — these two competing reports paint a picture of conflicts that are essentially unrecognizable from each other. Here’s a guide to the most explosive disagreements between the two documents.

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The Use of White Phosphorous

White phosphorous is a chemical compound that ignites when exposed to air, burning fiercely. Used as an incendiary weapon, white phosphorous sticks to clothes and skin and causes gruesome chemical burns. However, the substance also quickly creates a smokescreen. For this reason, it is favored by armies, including the IDF, for concealing their armored units from enemy anti-tank teams. The Goldstone report accuses Israel of using white phosphorous munitions with a reckless disregard for the civilian population in Gaza; Israel insists that it only used white phosphorous to shield ground units from attack.

Goldstone:

• [T]he Mission, while accepting that white phosphorous is not at this stage proscribed under international law, finds that the Israeli armed forces were systematically reckless in determining its use in built-up areas. Moreover, doctors who treated patients with white phosphorous wounds spoke about the severity and sometimes untreatable nature of the burns caused by the substance. The Mission believes that serious consideration should be given to banning the use of white phosphorous in built-up areas.
• On 15 January 2009, the UNRWA field office compound in Gaza City came under shelling with high explosive and white phosphorous munitions. The Mission notes that the attack was extremely dangerous, as the compound offered shelter to between 600 and 700 civilians and contained a huge fuel depot. The Israeli forces continued the attack over several hours in spite of having been fully alerted to the risks they created.

Israel:

• With respect to smoke projectiles, the Military Advocate General found that international law does not prohibit use of smoke projectiles containing phosphorous. Specifically, such projectiles are not ‘incendiary weapons.’

• The Military Advocate General further determined that during the Gaza Operation, the IDF used such smoke projectiles for military purposes only, for instance to camouflage IDF armor forces from Hamas’s anti-tank units by creating smoke screens.

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Al-Bader Flour Mill

As Israeli ground forces moved into Gaza, they attempted to surround the Shati refugee camp in the northern part of the disputed territory. Edging closer to the camp, they fought Hamas militants near the al-Bader flour mill, Gaza’s only operational flour mill at the time. Key details about the assault are disputed: The Goldstone report states that the Israeli Air Force purposefully destroyed key machinery within the factory, whereas the Israeli government says that, despite its intentions to leave the flour mill unharmed, it was hit by tank shells during the fierce fighting in the surrounding area.

Goldstone

• The flour mill was hit by a series of air strikes on 9 January 2009 after several false warnings had been issued on previous days. The Mission finds that its destruction had no military justification. The nature of the strikes, in particular the precise targeting of crucial machinery, suggests that the intention was to disable the factory in terms of its productive capacity. 

• [T]he flour mill was hit by an air strike, possibly by an F-16. The missile struck the floor that housed one of the machines indispensable to the mill’s functioning, completely destroying it. The guard who was on duty at the time called Mr. Hamada to inform him that the building had been hit and was on fire. He was unhurt. In the next 60 to 90 minutes the mill was hit several times by missiles fired from an Apache helicopter.

• The Mission also finds that the destruction of the mill was carried out for the purposes of denying sustenance to the civilian population, which is a violation of customary international law and may constitute a war crime.

Israel

• In the course of the operation, IDF troops came under intense fire from different Hamas positions in the vicinity of the flour mill. The IDF forces fired back towards the sources of fire and threatening locations. As the IDF returned fire, the upper floor of the flour mill was hit by tank shells.

• [T]he immediate area in which the flour mill was located was used by enemy armed forces as a defensive zone, due to its proximity to Hamas’s stronghold in the Shati refugee camp. Hamas had fortified this area with tunnels and booby-trapped houses, and deployed its forces to attack IDF troops operating there.

• The Military Advocate General did not accept the allegation in the Human Rights Council Fact-Finding Report that the purpose of the strike was to deprive the civilian population of Gaza of food. In this regard, he noted the fact that shortly after the incident, the IDF allowed Palestinian fire trucks to reach the area and extinguish the flames, as well as the extensive amount of food and flour that entered Gaza through Israel during the Gaza Operation.

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Attack on the Namar Well Group

The airstrike on Dec. 27, 2008, is described by the Goldstone report as the willful destruction of one of Gaza’s best sources of clean water, and by Israeli sources as an assault on a guarded Hamas “regional command and control center.” Israel insists that it was not informed that there was a wells complex on the site and contends that the entire installation was being used by Hamas for military training and weapons storage. The Goldstone report makes no mention of the site’s use for military purposes  and notes that Israel refused permission to municipality workers to enter the area to repair the damage.

Goldstone:

• The Mission considers it unlikely that a target the size of the Namar Wells could have been hit by multiple strikes in error. It found no grounds to suggest that there was any military advantage to be had by hitting the wells and noted that there was no suggestion that Palestinian armed groups had used the wells for any purpose.

• Mr. Ramadan Nai’m told the Mission how proud CMWU [Coastal Municipalities Water Utility] had been of this water well which produced more than 200 cubic metres per hour of the best-quality water in the area. The operator, Mr. Abdullah Ismail al-Zein, was killed in the air strike. … [h]e was blown to pieces and his identity was established when his shoes were found three days later.

• Considering that the right to drinking water is part of the right to adequate food, the Mission makes the same legal findings as in the case of the Al Bader flour mill.

Israel

• According to the findings of the command investigation, the CMWU provided coordinates located within a closed military compound of Hamas. This compound served as a regional command and control center and was used for military training and weapons storage. Guards manned the entry to the compound and prohibited entry by unauthorized civilians.

• [The IDF] had no information about the Namar water wells before the operation. … [H]ad the CLA [Coordination and Liaison Administration] received such information before the operation, it would have been immediately reported to all relevant IDF units.

• The Military Advocate General … found no credible basis for the allegation that the strike was intended to deprive the civilian population of Gaza of water.

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Destruction of the House of Abu Askar and the Death of His Two Sons

In the dead of night on Jan. 6, 2009, Muhammed Fouad Abu Askar received a call from the IDF warning that his house, where 40 members of his extended family were living, would be destroyed. Abu Askar says that he quickly evacuated his family and that his house was destroyed by a missile fired from an F-16 seven minutes later. Later in the day, as Abu Askar attempted to recover material from his destroyed house and find new lodging for his family, mortar fire on his crowded street claimed the lives of his brother and two teenage sons, the youngest of whom was only 13. The Goldstone report accuses Israel of reckless disregard for civilian life in firing mortars into a crowded urban area. Israel counters that Abu Askar’s house was a legitimate military target and that his two sons were well-known Hamas operatives working in a rocket-firing team.

Goldstone

• Mr. Abu Askar was in the street at around 4 p.m. [hours after the attack], when several mortars landed. … Among those killed immediately were two sons of Mr. Abu Askar, Imad, aged 13, and Khaled Abu Askar, aged 19. Mr. Abu Askar’s brother Arafat was also killed.
• [T]he Israeli armed forces directly called Mr. Abu Askar early in the morning of 6 January notifying him that his house would be attacked imminently. If Imad Abu Askar was as notorious and important as alleged, despite his young age, the Mission presumes that the Israeli authorities would have known where he lived and, in particular, that he lived in the very house they were about to destroy. It is extremely doubtful that the Israeli armed forces, having identified the house where alleged Hamas militants of some significance lived, would warn them so that they may escape and then bomb the house.
• The Mission does not deny the possibility of children being recruited by Palestinian armed groups. However, in the case of Imad Abu Askar, the Mission is satisfied that he was not a Hamas operative.

Israel

• According to the findings of the command investigation, the cellar and other parts of Mr. Abu-Askar’s house were used to store weapons and ammunitions, including Grad rockets.
• The sole basis for the claim in the Human Rights Council Fact-Finding Report that the house was a civilian target was Mr. Abu-Askar’s testimony before the Fact-Finding Mission. The Mission, however, did not ask Mr. Abu-Askar any questions about the potential use of his house for military purposes.
• Shortly after the strike, two sons of Mr. Abu-Askar, both Hamas military operatives, were killed while they were involved in launching mortars at IDF forces.

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