Between 27 December 2008 and 18 January 2009, the Israeli military carried out an attack on the Gaza Strip, which it called Operation Cast Lead. The magnitude of the harm to the local population was unprecedented: 1,389 Palestinians were killed, 759 of whom did not take part in the hostilities. Of these, 318 were minors under age 18. More than 5,300 Palestinians were wounded, 350 of them seriously. Israel also caused enormous damage to residential dwellings, industrial buildings, agriculture and infrastructure for electricity, sanitation, water, and health, which was already on the verge of collapse prior to the operation. According to UN figures, Israel destroyed more than 3,500 residential dwellings and 20,000 people were left homeless.
During the operation, Palestinians fired rockets and mortar shells at Israel, with the declared purpose of striking Israeli civilians. These attacks killed three Israeli civilians and one member of the Israeli security forces, and wounded dozens. Nine soldiers were killed within the Gaza Strip, four by friendly fire. More than 100 soldiers were wounded, one critically and 20 moderately to seriously.
As an Israeli organization, B'Tselem focuses on Israel's acts and its responsibility for human rights violations. However, it should be noted that Hamas also committed serious violations of international humanitarian law during the operation. Hamas's practice of operating within Palestinian civilian communities undoubtedly affects the legality of Israel's attacks that caused civilian casualties. This, however, does not legitimize every military action during the operation, nor does it prove that Hamas bears sole responsibility for all the harm to civilians.
One and a half years after Operation Cast Lead, extensive areas in the Gaza Strip have yet to be rebuilt. In June 2010, Israel reduced somewhat the restrictions on entry of products, but construction materials are still subject to harsh restrictions and are only allowed for projects under international supervision. These restrictions prevent the rebuilding of houses that were destroyed and damaged, and more than 20,000 persons continue to live in overcrowded conditions in rented apartments, in tent camps, or with relatives. The restrictions also prevent rehabilitation of the infrastructure that was damaged: this summer, 90 percent of Gazans still suffered electricity blackouts of up to 12 hours a day. These blackouts, which result from the damage Israel caused to infrastructure when it bombed Gaza's power station in 2006 and during Operation Cast Lead, increased substantially recently following a dispute between Hamas and the Palestinian Authority on who bears responsibility to cover the fuel costs. The transfer of half a million liters of fuel to the Gaza strip on August 25 2010 succeeded in reducing the duration of the electricity blackouts, that now last for 4-6 hours a day. The blackouts severely affect the quality of medical care provided in the Strip, due to the damage to medical devices and their limited availability. The health system is unable to function properly due to the lack of medical equipment, and seriously ill patients have difficulty receiving necessary medical treatment. The lack of infrastructure also impairs access to water and wastewater treatment: some 3,000 Palestinians in the northern section of the Gaza Strip have no access to running water, and 80 million liters of raw and partially-treated sewage flow daily into open areas.
The extensive harm to the civilian population and the enormous damage to property do not indicate, in and of themselves, that the military breached international humanitarian law. However, investigations B'Tselem made during and after the operation, and information from many other sources, raise doubts regarding the declarations of Israeli officials that the military acted lawfully. The suspicions regarding breach of international humanitarian law relate not only to the conduct of one soldier or another, but primarily to policy. In some cases, there is a well-founded suspicion that the harm to civilians resulted from breach of the principles of distinction and proportionality, which are intended to ensure that civilians remain outside the cycle of the hostilities.
Armed Palestinian organizations breached international law by firing Qassam rockets at civilian population centers in Israel, by firing at Israel soldiers from inside residential areas, thereby endangering the lives of the residents, and by storing weapons in civilian buildings. In addition, Palestinian and international organizations documented at least 18 cases in which Hamas security forces or armed masked men apparently linked to Hamas executed without trial Palestinians suspected of collaboration with Israel. Thirteen of the persons executed were prisoners and detainees who escaped from the central prison, in Gaza City, after Israel bombed the prison during the operation.
Therefore, both sides are required to open an independent, credible investigation. Israel may not rely on internal operational debriefings or isolated investigations that focus on a limited number of incidents and the responsibility of relatively low-ranking commanders. Not only is an independent investigation required by law, it is necessary to meet the public's right to know what the state did in its name in the Gaza Strip.
The Military Police investigations ignore the policy that was implemented during the operation and the responsibility of the decision-makers in the political echelon. Even should indictments be filed as a result of these investigations, they will be against low-ranking soldiers or against officers involved in the actions on the ground. The persons who drew up the policy will not be held accountable for their acts.
To date, no independent investigation apparatus, empowered also to investigate the responsibility of the political and military decision-makers, has been established. According to the report that the Foreign Ministry provided to the UN in July 2010, the Judge Advocate General’s office ordered 47 Military Police investigations with respect to Operation Cast Lead. B'Tselem is aware of 20 Military Police investigations of incidents in which a suspicion arose that soldiers in the field violated army regulations. Four soldiers have been prosecuted for three incidents that occurred during the operation. In the first case, a soldier was convicted of stealing a credit card and sentenced to seven and a half months' imprisonment, a conditional sentence of seven and a half months, and demotion from sergeant to private. In the second case, indictments were filed against two soldiers alleging they used a nine-year-old child as a human shield, ordering him to open suspected booby-trapped bags. The two soldiers were convicted and sentenced to a three-month suspended jail sentence and demotion in rank from staff sergeant to private. In the third case, an indictment was filed against a soldier for killing an anonymous person and conduct unbecoming a soldier. In three other cases, disciplinary proceedings were instituted against six officers. B'Tselem is aware of at least six cases in which the Attorney General decided not to indict the soldiers.
Therefore, to investigate the suspicions that the army acted unlawfully, Israel must conduct an independent and credible investigation outside the army framework. When the operation ended, human rights organizations, B'Tselem among them, wrote to the attorney general, demanding that he establish an independent investigatory framework for examining the military’s behavior during the operation. The attorney general refused.
The UN Human Rights Council appointed Judge Richard Goldstone to head a fact-finding mission regarding the hostilities in Gaza. The mission demanded that the sides investigate suspicions of war crimes committed during the operation and prosecute the perpetrators to the full extent of the law. Israel condemned the Goldstone commission's report, claiming it was misleading, tendentious, and biased. B'Tselem rejected these claims, though it criticized some of the report's statements and conclusions. Among other things, B'Tselem thought that the report's criticism did not reflect the severity of the breaches committed by Hamas combatants and that the claim as to Israel's primary goal in conducting the operation was not sufficiently investigated. However, B'Tselem accepted the main recommendation of the report: Israel, as well as Hamas, must investigate the suspicions that they acted in contravention of the law.
B'Tselem again demands that Israel carry out an independent and effective investigation of the army's conduct during Operation Cast Lead, and that the investigation be carried out by persons who were not involved in any way with the operation.
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